On Monday the Scottish Government published its constitutional proposals for an independent Scotland: Scottish Independence Bill: A consultation on an interim constitution for Scotland, in advance of the referendum on 18 September 2014 The document includes a draft Bill providing for Scotland to be an independent State and sets out the interim constitution which would apply from Independence Day, together with a detailed commentary explaining the provisions of the Independence Bill and summarising the content of a renewed Scotland Act which would be enacted by the Scottish Parliament and repeal Schedule 5 to the current Act (which sets out the matters reserved to Westminster). It also explains the process following a “yes” vote, including the establishment of a Constitutional Convention to prepare a permanent written constitution.
The consultation poses six very broad questions on its proposals:
- What are your views on the proposed process for the Scottish Independence Bill?
- What are your views on the proposed content of the Scottish Independence Bill?
- What are your views on the proposed adjustments to the Scotland Act 1998?
- What are your views on the constitutional status of the Scottish Independence Bill and renewed Scotland Act and on the certification procedure for subsequent bills?
- What are your views on the process for the development of a permanent written constitution by a Constitutional Convention?
- Do you have any other comments about the proposals in the Bill?
Crucially, the Government’s intention for the Constitutional Convention established under section 33 of the draft Bill is that
“… the permanent written constitution for an independent Scotland can be drafted, not by the current or any future Government, nor by elected politicians, but through an inclusive and widely participative process involving many civic society groups such as trades unions, business interests, local councils, faith groups, community groups and – importantly – also extensively involving ordinary citizens. The current Scottish Government will be just one voice amongst many in this process. The Scottish Government would make proposals for some issues to be included in the constitution, as set out further in Chapter 5, but would not control the process or the content of the constitution. It will be open to all groups, and also individual citizens of an independent Scotland, to make proposals for the constitution that the independent Convention will consider and upon which it will decide”.
Which is an extremely interesting proposal – always provided it doesn’t just end up as a Convention of Usual Suspects.
If at this point you are wondering what all this might have to do with “law and religion”, my answer would be, “more than you might think”. There are areas that are already devolved – such as education (in which the Scottish Catholic Education Service plays a very important part) and marriage law (which has always been very different from the Anglo-Welsh version) – which are intimately bound up with matters of religion and which might well diverge further in an independent Scotland. There is also a strand of sectarianism in some elements of Scottish society which was thought to be dangerous enough to be worth legislating against: see the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. But what seems to be engaging some commentators in particular is the future constitutional status of the Church of Scotland.
Unsurprisingly, the draft Scottish Independence Bill says nothing whatsoever about the future position of the Kirk; however, as we have noted previously, some members of the Free Kirk, in particular, have been very concerned about the question because they see any threat to the Establishment Principle as tending to weaken the position of Christianity in the life of the nation. (Whether that would be a good thing or a bad thing per se is an entirely different matter.)
In its earlier policy statement, Scotland’s Future: Your Guide to an Independent Scotland, the Scottish Government declared that “We propose no change to the legal status of any religion or of Scotland’s churches”; and the terms of the draft Bill seem to bear out the Scottish Government’s undertaking.
Section 34 (Continuity of laws) states that “The laws that are in effect in Scotland immediately before Independence Day are to continue to have effect on and after Independence Day…” unless or until repealed or amended, so the presumption must be that the Church of Scotland Act 1921 would continue in force. In addition, section 26 of the draft Bill (Respect for human rights) confirms Scotland’s continued adherence to the ECHR – which, of course, includes Article 9 (freedom of thought, conscience and religion). On that basis, it is difficult to see how the Bill, if enacted, would immediately affect any religious group in Scotland, though what might happen further down the line is an open question.
But in any case, it is only a draft of an interim Constitution; and no doubt much ink will be spilt (and electrons agitated) over constitutional arguments between now and 18 September. And it might never happen at all.