Constitution for Scotland

start

Constitution for Scotland (this is not a page on the website www.constitutionforscotland.scot).
Comments and proposals for amendments to sections of the articles of the Model Constitution for Scotland.
This page contains the contributions to the Constitution for Scotland website and some further remarks.
The comments and remarks solely reflect my own opinion.

AMENDMENTS
	Article 1: Section 12 Guardianship wards also deserve a vote
	original wording
Citizens, resident, and on the electoral register, are entitled to vote in all national elections and referendums upon reaching the Age of Legal Capacity, except for persons under guardianship due to severe mental incapacity as defined by a specific medical or judicial certification.
	proposed amendment
Citizens, resident, and on the electoral register, are entitled to vote in all national elections and referendums, except for persons excluded by law.
	comments 1 (comment on amendment)
This section contains two things to which I oppose: 1/ 'the Age of Legal Capacity’ as minimum age for entitlement to vote (see section 4.9) and 2/ the exclusion of 'persons under guardianship due to severe mental incapacity' as this is an unwarranted discrimination. It is an entitlement of all citizens in a democracy to have their interests looked after by an elected representative. Citizenship rights cannot be taken away for reasons of guardianship. Persons with similar mental incapacities have different chances of being placed under guardianship depending on their social and family circumstances (see for more in https://www.drwillem.org/constitution).
	comments 2 (reaction to Arfem's comment)
Section 1.12. Being on the Register alone, I think, is not a sufficient reason for the right to vote. This right should be reserved for persons who are on the Electoral Register and who are legal Residents of Scotland. It is much more logical for expatriates to vote for the political institutions in their country of residence.
	further remarks
Mental incapacity is an impairment. Discrimination on this ground is against section 2.3. The guardianship as reason for the exclusion is unfair when the chance of being placed under guardianship very likely depends on family and other circumstances that are irrespective of the incapacity. It would be much more logical to give the vote of the person under guardianship to the guardian who then can vote as proxy and then cast the vote in the interest of the ward. The right to vote is sacrosanct in a democracy and to exclude someone from it must have a considerably important justification. Mental incapacity is not such a reason. It is a much too difficult concept to define clearly and with most likely different interpretations over time. Citizens with mental incapacities also have interests, such as how to be looked after to lead a dignified life. These interests are best looked after by the persons themselves or by a proxy on their behalf. We shouldn’t shove these people to the side. They also contribute to the society of which they are a constituent member. When we say ‘our’ society then that includes them. Because of their special circumstances they require special care by special professionals who with this have a rewarding and respectable job. The presence of a substantial number of members of a society who are professional carers, has a significant influence on the society as a whole. All persons are entitled to a vote. All means all. Only very special reasons can be seen as a justification to withhold or take away this right.

	Article 4: Section 9 Voting rights from birth on
	original wording
All Scottish citizens will be automatically entered onto the electoral register on attaining the Age of Legal Capacity and will retain registration for life. All registered Scottish citizens are entitled to vote in the Parliamentary elections and National referendums.
	proposed amendment
Section 4.9. All Scottish citizens will be automatically entered onto the electoral register on birth registration and will retain registration for life. All registered Scottish citizens are entitled to vote in the Local Government elections in their constituency of residence, the Parliamentary elections, and National referendums.
	comments
It is unclear what the connection is between voting and the age of legal capacity. The former is a right where the latter is a recognition. This age has changed over time and with that the minimum voting age. It suggests a simultaneously gaining capacity to vote and to act legally. The minimum voting age can be determined separately but I would like to suggest having this from birth on. It gives the young citizens a sense of belonging from very early on, but there are many more reasons to have a complete suffrage. (see for more in https://www.drwillem.org/constitution)
	further remarks
The right to have a say in how one is governed, gives expression to the right to have one’s interests looked after by the representative of one's own choice. There is a lot to say about this. The democratic right to vote for a representative has developed over time from a very few to all of us except for the young persons. They seem to have been overlooked in the advancing process of extending the suffrage. It is time to proceed to a complete suffrage including all citizens and legal residents. The possibility of Scottish Independence is an excellent opportunity to settle this in the Constitution. But until then it could well be Scotland to be the first country in the world to abolish the minimum voting age and to include all ages in the suffrage. Scroll down this page or use this link to read more about it.

COMMENTS
	Article 1: Section 1
	original wording
We, the people of the free sovereign and inalienable nation of Scotland do hereby express and enact our collective will through this written Constitution.
	comments
Section 1.1 is an excellent preamble of the Constitution and doesn't require alteration or addition.
	further remarks
The statement is succinctly and spot on setting the tone of a confident nation capable of managing its own affairs.

	Article 1: Section 6
	original wording
Citizenship: All persons, including adopted children, who were UK citizens immediately prior to independence, and were born in Scotland, or were legally resident in Scotland at independence, will become citizens of Scotland.
	comments
Section 1.6. I can fully agree with section 1.6 as long as it is to be read to including the non-UK citizens that are legally resident in Scotland at independence. Such a citizenship should only be granted on application and then with simultaneously abandoning the UK or non-UK citizenship.
	further remarks
A more clear and unambiguous wording would have been: "All persons who were legally resident in Scotland immediately prior to independence will become citizens of Scotland".

	Article 2: Section 3
	original wording
The rights and freedoms set forth in this Constitution are enjoyed without discrimination on grounds of age, sex, race, colour, disability, impairment, language, culture, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
	comments
This section contradicts itself on one ground. The citizens below the age of legal capacity are excluded from the right to vote (see also section 4.9). I agree with DavidGreenlees’s simplification, but sometimes it can be important to specifically stipulate the different grounds of discrimination.

	Article 2: Section 16
	original wording
All citizens have the right to be treated with dignity, and to participate in society as full and equal members, and to have barriers to such participation removed.
	comments
Dignity implies food, shelter, income. Maybe in some future dignity would also imply other things, which then would not be in the Constitution. I therefore voted in favour of the Original Version.

	Article 2: Section 19
	original wording
All citizens are equal before the law and have the right to equal benefit of the law.
	comments
All citizens are equal before the law, but some are a bit less equal. Citizens under the age of legal capacity do not have the right to vote (see also section 4.9). Also, NSCNICK is right, but I do not think the Original Version needs to be changed for that.

	Article 4: Section 1
	original wording
Subject to the rights of the People, the supreme legislative power is entrusted to a unicameral Parliament.
	comments
With this Scotland would be an exception among like-minded democratic countries that all have two chambers. There are many different options imaginable. A bicameral Parliament would give more stability in the Legislature with, for instance, an extra chamber that has the power to reject proposed bills for reasons of being in violation with the Constitution. The extra chamber could be elected by five regions (Highlands and Islands, Lowlands, Central Scotland, Caledonia and Lothian, all with similar population numbers), each with 12 representatives by proportional representation. (see for more https://www.drwillem.org/constitution)
	further remarks
For more about a Two-Chamber Parliament, scroll down this page or use this link to read more about it

	Article 4: Section 4
	original wording
Parliament will sit for a statutory period of five years and will be supported by a Civil Service.
	comments
To avoid confusion, and with that an endless discussion, it may be a suggestion to stipulate: “. . . . a statutory period of five years or so much less as a prior dissolution will determine, and will be . . . .”

	Article 4: Section 8
	original wording
The general elections take place during the first week in May with the rules for campaign expenditure for parliamentary candidates being set by law.
	comments
‘First week in May’ does not need to be mentioned. 'Elections to be held within thirty days following dissolution' would suffice. Otherwise, it could give rise to discussions that the rules for campaign expenditure were not applicable if the elections were not in May, such as after a premature dissolution.

	Article 4: Section 10
	original wording
All persons, with a minimum of five years’ work experience out with the political field and eligible to vote in elections for the Scottish Parliament, are eligible to stand for election to Parliament. No person who holds executive, administrative, military, diplomatic or judicial public office (other than Ministerial office) may be elected to Parliament unless they resign from the incompatible office. All candidates for election will be selected at constituency level.
	comments
To limit to stand for Parliament to people with a minimum work experience, is discriminative against all those who for whatever, but legitimate reason have been unable to fulfil this condition. What about, for instance, a 22 years-old candidate with 4 years of work experience following education until 18th year? (see for more in https://www.drwillem.org/constitution)
	further remarks
The Parliament is the institution that embodies the People, and the members form its mirror image or so they should. The age of legal capacity seems to be an acceptable minimum age to ensure a reasonable cognitive development and because we all may one day reach this age. To exclude well proven criminals to stand, also seems to be justified to prevent them continuing their career using the seat, but is it justified for all kinds of crime? But to exclude people without a minimum work experience, is straightforward discrimination and it is rather patronising. A substantial number of people have not been able to gain work experience for perfectly acceptable reasons. It may be too early following their education, it may be they had other obligations such as caring for a relative, it may be a medical condition making at difficult finding a job. There certainly are more reasons for not having a work experience but still having the life experience and wisdom. Many of us would be happy to be represented by one of them because they identify with them. The only acceptable reason to refuse someone to stand for Parliament is the expectation of damaging the institution.

	Article 4: Section 21
	original wording
All Members of Parliament will be allowed freedom to vote free from intimidation from others. It is the responsibility of the Elected Members to ensure that the majority view of their constituents is prioritised over all other personal or political party considerations.
	comments
This can cause substantial political and social difficulties. What if the majority is 51%? This would mean the view of 49% to be dismissed. And what if the majority view favours capital punishment? I’m not sure if this responsibility in this way described, does not cause more problems than it intends to prevent.

	Article 5: Section 10
	original wording
Parliament will appoint committees to inspect and oversee the Government and to scrutinise specific legislation. They will consist of at least seven members, chosen by parliamentary vote, by proportional representation of political groups.
	comments
This could be a task for the extra chamber (see section 4.1)

	Article 5: Section 12
	original wording
Members of Parliament holding a ministerial office will, by virtue of that office, be disqualified from membership of all select committees and from Parliament’s Corporate Body. They may serve on Parliamentary Commissions and Boards of Enquiry only where there is no conflict of interest.
	comments
'MPs who are ministerial office bearers' conflicts with the separation of powers, which is considered a cornerstone of democratic government. (see for more in https://www.drwillem.org/constitution)
	further remarks
Use this link or look down this page to read more about the Separation of Powers.

	Article 5: Section 14
	original wording
The non-government aligned Members of Parliament may elect a member who will be designated by the Presiding Officer as the Leader of the Opposition.
	comments
This idea very much is the inheritance of a biparty Parliament and a reminiscence of the Westminster model of Parliament. Principally, all MPs have the democratic duty to scrutinise the Government. (see also section 5.12)

	Article 5: Section 16
	original wording
Parliament will have the authority to initiate a vote of no confidence in an individual Minister, the Scottish Government as a whole, or an individual Member of Parliament. The Parliamentary Bureau will have the authority to discipline the offender/s.
	comments
A vote of no confidence against the Government is a political one, against an MP it is against the Electorate who voted for the MP. Removing an MP for political reasons is a competence that belongs to the constituency electorate. The Parliamentary Bureau will only have the authority to discipline an offender in case of violation against its rules (misconduct in office).

	Article 5: Section 17 (extra after section 5.16 slot)
	wording by sdonald01
All members of parliament, shall have their voting records published annually, based on parliamentary sessions. All parliamentary members, shall be allowed to vote individually. If the vote is “whipped” this should be noted in the record. The parties shall provide at time of voting in the legislature, whether the vote is freely given, or whether the vote was “whipped” by their party. This shall also be published annually, based on Parlimentary sessions.
	comments
A Member of Parliament is ultimately accountable to his/her constituency. Party loyalty may play a role in deciding how to vote, but this should always be cast in freedom, sometimes with the risk of losing the whip. (see section 6)
	further remarks
MPs are personally elected and are only accountable to the electorate. Of course, they often are candidates representing the political ideas of a political party but they are not only representing that party. The MP is there to promote the interests of the whole constituency. If that conflicts with party policy, then the electorate takes precedence (see section 4.21). Scotland’s interest is that of its people, not of a political party or any other group that does not represent the whole of the population. Taking the whip away from dissenting members may well backfire on a party. The whole whip-concept is very Westminsterish.

	Article 7: Section 5
	original wording
Cabinet Secretaries and Law Officers will be appointed by the First Minister. All other Ministers will be nominated by Members of Parliament and voted in by a simple majority vote of Parliament.
	comments
I agree with Bannachie. Also, will it be possible for the Parliament to appoint nominated ministers who are not MPs? This would help with the separation of powers.

	Article 7: Section 11
	original wording
Non-government organisations will operate under the direct authority of the office of the responsible Cabinet Secretary.
	comments
This would make these NGOs indirectly governmental.

	Article 10: Section 1
	original wording
Amendments to the Constitution will require a two-thirds majority vote in parliament followed by a public referendum.
	comments
An alternative could be: “Amendments to the Constitution will require a two-thirds majority vote in parliament followed by a common majority in a newly elected Parliament”. This form of indirect referendum may prevent populistic referendum campaigns.
	further remarks
Constitutional Amendments reflect important changes to a political constellation and require the utmost dedication of all those who are involved in it. A wider support than a common majority can be part of that, such as a two-thirds majority in Parliament. A subsequent Referendum with a common majority can be very divisive, as recent UK-history has shown. Referendum campaigns can easily be hijacked by organisations with undemocratic motives. A referendum-tiredness in the population is the unintended result and with that a loss in democratic trust. An alternative for the referendum is to dissolve the Parliament and elect a new one that can pass the amendment with a common majority. In this way the population also has a say by electing the representatives in whom they have confidence. It also shows the Constitution preferably to be general rather than specific to avoid the need for frequent changes.

'DEMOCRACY, the tree that grows to guard us all to thrive' copyright Annemarie van Ulden

Democracy for all, an argument for complete suffrage

Suffrage is one of the most important and visible institutions of democratic government. Universal suffrage is the voting right for all. The only restriction is residency for local elections, citizenship for nationwide elections and a minimum voting age. The suffrage enables the people to participate in the government by electing a representative. The representative voices the opinion of the electors on their order or as seen in their interest. This elected representative embodies the participation of the constituency in the governing of the country. The exclusion of everyone under the age of 16 years (in most countries 18 years) from the universal suffrage is generally accepted because of the cognitive development of this group of people. This is not supported by the general theory of representation. This theory implies the representative to act in the general interest of the citizens of the constituency as well as the wider community. The young people out with the franchise do not have a say in the choice of the representative and are not electorally respected. An argument against exclusion of the under 16-18 is that their interests are not given weight through a vote according to the principle of one-man-one-vote. Since the beginning of this century an increasing amount of literature has appeared exploring the possibility to increase the franchise by lowering the voting and ultimately from birth on. Opponents to such an extension stress the lack of maturity as the main argument for their view. An important argument in favour of the extension is the further increase of democratic development of society.

An essay about this subject explaining democracy and representation with a voting age from birth on, can be downloaded (for free) from this link:

Separation of Powers

The best safeguard of the Rule of Law is the independence of the Judiciary. The best guarantee for just laws is the Sovereignty of the Legislature. The best way to an effective government is a separate Executive, acting according to the law and being scrutinized by the Parliament. This all together would make it the best possible country for the citizens and all others who reside in it. Up to this day in the UK the boundaries between these three powers have been fuzzy. It was only in 2009 that the Supreme Court as an independent judiciary institution, replaced the Appellate Committee of the House of Lords as the highest court. The Government still is led by a Member of Parliament, as also are the Ministers and Cabinet Members. That means that several persons are part of the Executive and the Legislature at the same time. In effect this means that several MPs no longer fulfil their constitutional duty of scrutinizing the government. If the separation of powers is seen as one of the most important conditions of a democracy, then this blurring between Legislature and Executive should be avoided or even be made constitutionally impossible. To recruit the members of the executive from the members of parliament, is a solid democratic appointment as these persons are elected by the people. However, on appointment they should resign from the parliament being two incompatible positions. For Scotland the vacancy should then be filled by the next in line on the Regional List, or by any other rule as set by Parliament. A clear separation of the powers helps with transparency of the public administration and prevents a conflict of interests.

Two-chamber Legislature

Most democratic countries have a two-chamber Parliament. They may all have their own, different history of origin; however, the concept comes with advantages for democratic governance. Most countries have an overrepresentation of the urban areas, being the most populated. A more regional base for the extra chamber redraws the balance. A suggestion for this can be seen in section 4.1. Another advantage is to divide the legislating procedure over two chambers with one drawing up the law with all the political and social considerations, and the other chamber to go over it again but with only the power to reject it or send it back. It helps against rash decisions. A third advantage is that the actual power of law making is divided over two chambers and with that more stability. It will encourage governments to propose laws that have a wider support in society through its representation in two chambers. Another example is, for instance, to have a proposal for constitutional change to have accepted by two-thirds of the joint chambers.
Sometimes a disadvantage is suggested by needlessly delaying the legislating process, but that is what others see as an advantage. Of course, it also comes with extra costs, but that is well worth it considering the importance of just laws. Only laws that are carried by the People have authority.

How to arrange the two chambers is open for discussion, but I would like to suggest the following:

First Chamber, 129 seats,
- elected (as presently the Scottish Parliament), seventy-three from constituency candidates plus fifty-six from regional list candidates,
- for appointing First Minister from its Members,
- for drawing up legislation as proposed by government, parliament, individual MPs or by popular request,
- to confirm Cabinet (Secretaries of State and Ministers) in office,
- no other professional appointments.
Second Chamber, 60 seats,
- elected from five regions (Highlands and Islands, Central Scotland, Lowlands, Lothian, Caledonia) each 12 seats, by proportional representation,
- for reviewing legislation drawn up by First Chamber, without right of Amendment,
- no incompatible professional appointments,
- election for two sessions (10 years or less) maximum.

Some thoughts on a Constitution for Scotland

History tells us that certain developments appear inevitable. One of these developments, I think, is the political independence of Scotland as a country, not if but when. In the run-up to that it is good statesmanship (m/f) to do the preparatory work for its legal structure. A written constitution is a solid foundation for the new state. 'Scottish Parliament', photo from internet. That offers a unique opportunity to draw up a document with articles for a new country, highly developed and already with a history of centuries. It is a chance not to just copy the UK example but to take all the other constitutions, constitutional ideas and the specific Scottish situation as sources from which a whole new constitution can arise. Scotland itself already has contributed to this with the Declaration of Arbroath from 6th April 1320. With all this in view and mind a constitution that enshrines freedom, civil rights and duties, social justice and mutual responsibility will be the foundation of a country where its people can thrive. This short essay discusses several building blocks that make a strong constitution such as people and territory, sovereignty, polity, form of government, institutions, civil rights and duties, and with Scotland in mind.
To read more of this text

The above texts are my comments, proposed amendments and further remarks, for who is interested, to the Model Constitution for Scotland.
This page does not serve as an extension of the discussion.
Copyright of above illustrations by Annemarie van Ulden.
All texts by dr Willem van IJperen
first published 1st October 2021,
additions: 03/10/21, 24/10/21.

for more information visit the CfS-site at:
or visit about voting rights from birth.

Very short C.V.
profession	retired Paediatric Consultant, NHS
education	H.B.S.-A, H.B.S.-B. (Netherlands A-levels Humaniora and Sciences)
Dr	Doctor of Medicine, General Medical Council, 2814148
MSc	Master of Science in Medicine, Erasmus University Rotterdam
MD	Medical Doctor, Erasmus Medical School, Rotterdam
DCH	Diploma of Child Health, Royal College of Physicians of London
MA	Master of Arts in Medical Ethics and Law, Keele University
BA(Hons)	Bachelor of Arts with Honours in Philosophy, Politics and Economics (PPE), University of Highlands and Islands
FRCPCH	Fellow of the Royal College of Paediatrics and Child Health

end