Thursday, September 18, 2014

Iron Highlander Constitution

By Robert H.

Just in case Scotland goes independent, I've been flipping through its interim constitution.  I have four thoughts:

1. It's not modeled on the German constitution.  This is basically a mistake for new countries.  It's just not going to be possible, I don't think, to turn Britain's historically and culturally contingent, unwritten constitution into a concrete written document.  They should stick to the modern constitution that people have had the most success copying (ie, Germany).

2. In terms of human rights, it adopts the rights in the European Convention on Human Rights.  This is a good idea, and covers pretty much all the rights Americans think of as rights (to some degree or another) plus some economic rights and no death penalty.  BUT

3. I have no idea what Scotland's relationship with the European Court of Human Rights is supposed to be.  The constitution incorporates EU law, but the Court is rooted in the Council of Europe, not the European Union.  The constitution doesn't mention the court, and doesn't incorporate the provisions of the European Convention on Human Rights that established the court.

Very odd.  Different European countries give the court different effects: in Russia, the court's rulings are binding law.  In Switzerland, they are more very strong suggestions.  In Scotland, they are going to be I have no idea what, if the court even has jurisdiction.

4. No eternity clause (unless I missed it).  This means that, like America, ultimately the will of the people is truly sovereign, and a supermajority can amend the constitution even to remove fundamental human rights.

Caveat -- this is based on a quick skimming and a weak knowledge of European law.