The constitutional scholar Dr. Mark McNaught, who is a Professor of Law, Philosophy, and US Civilization at the University of Rennes, is one of those who has been attempting to devise a draft constitution for an independent Scottish state. Other groups and individuals have also been working on similar projects.
This draft is not intended as the last word on a Scottish constitution, it is intended as a discussion document to help promote discussion and debate about the contents of a written Scottish constitution which is fit for the 21st century.
Within a few weeks Mark hopes to put this document on a Wiki style platform in order to allow all those who are interested to revise and add to this document with the aim of producing a truly crowd-sourced Scottish constitution.
This document has been produced by Mark, together with input from Gordon Ross and many others. It’s being published here so that you too can have your say, make your suggestions, and contribute your views and opinions. Naturally we can only establish a Scottish constitution once independence has been won and it is a conversation which must involve everyone in Scotland, including those who currently oppose independence, however the idea behind this initiative is that when Scottish independence is achieved, we will be able to have a more informed and productive debate about the precise contents of the constitution of the Scottish state because many people will already have been thinking about and discussing constitutional matters.
The Constitution of the Scottish State
We, the people of the sovereign, free and democratic State of Scotland, for the love of our fair nation and proud countrymen and women, do hereby express and enact our collective will through this Scottish Constitution, the supreme and fundamental law of Scotland; which holds that the founding principles of the Scottish State are popular sovereignty as the sole basis for legitimacy, human rights for all, including equality, freedom, justice and the search for happiness. This constitution hereby provides, in these detailed articles, a basis for the continual application and respect of these constitutional rights across all of Scottish governance and society. All Acts of Parliament, treaties, regulations and other laws, whether enacted past, present or future, to the extent that they are incompatible with this Constitution, will be void and without effect.
Scottish Social Compact
The Scottish Government shall, to the fullest extent compatible with Scottish and EU law and constitutionally prescribed competences, have the principal objective of improving the lives and promoting the social mobility of all living in Scotland through the equitable provision of basic positive rights to assure individual liberty and nurture fulfilling lives. The Scottish State shall invest in public services to help provide a secure, stable and inclusive society for all which shall encourage people’s talent, enterprise, and ambition. These shall include but not be limited to the provision of healthy food, education, housing, employment, social welfare benefits, and health care adequate to lead a dignified life.
In exchange, the citizens of Scotland shall commit to benefitting from these rights by engaging in productive, harmonious, and constructive civic life at all levels of government and communities, and allocating their innate talents to the further improvement of Scotland and its citizenry.
Article I – Foundational and Symbolic Principles
Section A: The City of Edinburgh shall be the capital of Scotland. Parliament shall have the power to seat elsewhere under terms established by the Corpus of Scottish Law (CSL hereafter: explained in Article 3).
Section B: The official languages of Scotland shall be English, Scots, and Gaelic.
Section C: The national flag is the cross of St Andrew, blazoned azure, a saltire argent.
Section D: The national anthem shall be determined by the CSL.
Article II – Individual Liberties, Rights, and Obligations
The following liberties, rights, and obligations shall be conferred on all Scottish citizens, legal residents, both individuals and collectives. No individual or collective can be discriminated against on the basis of sex, ethnicity, origin, language, beliefs, physical, mental or ideological diversity, age, genetic characteristics, membership in a national minority, sexual orientation or gender identity, or any other personal or social circumstance or characteristic. There shall be no limitation upon their exercise except to prevent or penalise acts calculated to infringe on the rights and liberties of others, or forcibly to subvert the constitutional order that guarantees these rights and liberties. The rights and privileges guaranteed to persons under this Constitution and the CSL hereon extend only to human beings and human collectives; the extent to which such rights and privileges may be extended to corporations and other legally sanctioned entities shall be determined by the CSL.
Section A: Equity of Rights
§ 1. All citizens and residents of Scotland, regardless of their status, will be equally treated and protected under the CSL. Provision shall be made to assure gender parity in representation and pay at all levels of the public and private sector.
§ 2. The Scottish state is secular, and shall not establish, favour, nor disfavour any religion, and shall work towards the appeasement of religious and sectarian conflict in all forms. All religious and religiously owned institutions shall be subject to civil law, regulation, and taxation, with limited exceptions granted for acts and rituals which are demonstrably central and sincere to individual religious practice, and do not violate this Constitution or the CSL.
§ 3. Social equality being the essence of this Constitution and the Scottish polity, no ‘aristocratic’ or ‘noble’ titles or names shall be conferred or recognized by the Scottish State for any purposes. No law which perpetuates social castes, including primogeniture law, shall be recognized, promulgated, or applied. All human beings shall be treated equally under the law.
Section B: Fundamental Individual Liberties: The Scottish government shall pass no law infringing upon the following liberties, and shall structure the CSL and corresponding Scottish State institutions to guarantee the following:
§ 1. The freedom of speech, writing, publication, and of the expression of opinion with narrowly prescribed exceptions for demonstrably injurious discourse.
§ 2. The freedom of thought, of conscience, and of religious practice; including to not believe or participate in any religion.
§ 3. Autonomy of all persons over their bodies; including reproductive rights, the medical termination of pregnancy, and voluntary euthanasia as prescribed by the CSL.
§ 4. All men and women of marriageable age have the right to marry and to found a family in accordance with their beliefs and sexual orientation.
§ 5. The right to peacefully assemble and form associations for any lawful purpose.
§ 6. No law shall abridge the right of every person to freely form a union in their place of work, collectively bargain with their employer, to strike without state opposition, and the CSL shall penalize any infringement of this right. Every person has the right to conditions of work which are fair, healthy, and which respect the dignity of the person. A living wage shall be established by the CSL, to assure that no person working full time will live in poverty.
§ 7. The right to privacy in his or her personal affairs, family life, home, and correspondence. Consistent with technological advancement, provision shall be made by law to safeguard personal data and information, and preserve privacy and security in communications and transactions conducted through electronic media.
§ 8. The right to hold private property, and to the peaceful enjoyment of his or her property. Nothing in this clause shall invalidate any tax, duty or custom levied in accordance with the CSL, or an environmental regulation imposed on the development or use of land or natural resources.
§ 9. The right to a healthful environment, including clean air and water and a climate hospitable to life and supportive of agriculture. Provision shall be made in the CSL for the protection of the environment and for restrictions on the development of land and natural resources in furtherance of this clause
§ 10. Every person shall have access to governmental information, and the state shall exercise transparency in all functions.
§ 11. Every person shall have the right to physical safety. All firearms for those who are not on-duty police and military personnel are banned, with very limited exceptions granted for single-shot hunting rifles to be regularly licensed and stored according to the CCL.
Section C: Positive Social and Economic Rights: The Scottish Government shall be constitutionally bound to progressively assure for all, regardless of income, that:
§ 1. Every person has the right to have access to housing adequate to lead a dignified life.
§ 2. Every person will have a pension adequate for their dignity and well-being.
§ 3. Every person will have sufficient state-funded physical and mental health care to lead a dignified life.
§ 4. Every person shall have access to a state-funded education which allows them to reach their potential.
Section D: The Rights of the Accused: The Scottish Judiciary shall be bound to respect the following rights in all civil and criminal cases.
§ 1. Persons will be deprived of liberty only in accordance with due process.
§ 2. Every person who is arrested, or detained shall be informed as soon as is possible of the evidence and charges against them.
§ 3. Every person who is arrested or detained shall be brought before a competent court and tried as soon as possible.
§ 4. Every person has the right to fair and impartial judicial proceedings.
§ 5. Trials shall be conducted in public and judgment shall be pronounced publicly. Recordings will be made of all proceedings, with exceptions specified in the CSL.
§ 6. Every person charged with a criminal offence shall be presumed innocent until proven guilty.
§ 7. To be rapidly informed of the charges, in a language which he or she understands
§ 8. To have adequate time, facilities, and resources to prepare a defence, and to privately confer with counsel.
§ 9. To be defended in person or through a legal practitioner of his or her own choosing.
§ 10. To financial assistance necessary to secure adequate legal assistance. An adequately staffed and funded public defenders office shall be established, that each lawyer has a reasonable caseload to provide quality counsel.
§ 11. To have compulsory processes to summon and examine witnesses in his or her favour.
§ 12. To have all proceedings in court connected with the charge against him or her translated by a competent interpreter into the language which he or she best understands, if that language is not the language of the Court.
§ 13. Everyone convicted of a criminal offence shall have the right to appeal their conviction to a higher tribunal, on grounds specified in the CSL.
§ 14. The right to trial by jury shall not be suspended, restricted, or abridged.
§ 15. No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation or repay a financial debt.
§ 16. No person shall be subjected to torture, or to inhuman or degrading treatment or punishment, nor condemned to death or executed.
§ 17. No person shall be held in slavery or servitude, nor shall any person be required to perform forced or compulsory labour.
Section E: Civic Obligations
§ 1. All citizens and legal residents of Scotland, regardless of domiciliation status, shall be automatically registered to vote at 16 years of age, which cannot be revoked under any circumstances. Voting shall be conducted using the most modern technology available to assure 100% participation, and all citizens and legal residents shall be able to participate on all electoral levels.
§ 2. All citizens and legal residents of Scotland not in detention shall be required to serve on juries, with reasons for discharge to be prescribed by the CSL
Article III – The Corpus of Scottish Law
Section A: Purpose of the Corpus of Scottish Law
§ 1: The CSL shall make the entire Scottish legal code transparent and readily available online to all citizens and legal residents, that all may understand and follow the law under all circumstances.
§ 2: The CSL shall be written in the clearest, most understandable language, syntax, punctuation, and wording possible, employing the simplest most broadly understood words available, that all citizens and legal residents clearly understand the law, preventing its misapplication and exploitation, seeking to universally assure equality of access to and treatment under the law.
§ 3: The CSL shall be structured to be continuously updated to be fit for purpose for the political and economic circumstances of the future, eliminating the need for public administrations to develop separate regulations to enact law. Mechanisms shall be established for the administrations and civic groups to play a direct role in modifying the CSL in their respective administrative spheres. This has the intended purpose of reducing the time and energy elected representatives spend on enacting legislation, allowing them to devote maximum time to advocate for the issues and interests of their constituents.
Section B: Structure of the Corpus of Scottish Law
§ 1. The Corpus of Scottish Law shall be in the form of a single unified online document which shall be the authoritative source of law and regulation for Scotland.
§ 2. The CSL shall be divided into spheres of law and further subdivided into domaines, and any others developed by the constitutional and legal system created.
§ 3. The structure of the spheres shall include the following:
The object, purpose, and aims of the sphere of law
The rights of citizens and legal residents (identical) in the sphere of law, which shall have constitutional status to amend
The administration competent to apply the sphere of law, its structure, and its laws of operation
The applicable law regulating the sphere, subdivision into domaines, and the methods of application
Mechanisms enabling appeal and remedies on valid grounds.
Mechanisms to adapt the law to maintain fitness for purpose.
§ 4. The CSL shall complement and be bound by this Constitution, European Union Law, mechanisms for citizen participation, and international treaties and conventions to which Scotland is signatory.
Article IV – Electoral integrity, electoral rights, and Citizen Referenda
Section A: Fundamental procedural protections for elections, referenda, campaign finance, and anti-corruption
§ 1. The Scottish Electoral Audit Board shall oversee and apply Electoral Law, and shall have the authority to overturn election and referendum results if sufficiently flagrant violations occur, as specified in the CSL.
§ 2. The CSL shall establish an enforceable Code of Conduct for all candidates, elected officials, and civil servants, to assure that only people of impeccable honesty, integrity, and intelligence are qualified to hold office.
§ 3. The CSL shall regulate fundraising of parties, campaigns, officeholders, and civil servants, to get as close to a complete absence of corruption as is humanly possible.
§ 4. The CSL shall regulate the duration for all elections and referendum campaigns, to assure minimal disruption to the proper functioning of government.
§ 5. The CSL shall assure the methodological integrity and accuracy of all research groups, studies, polls, campaign literature, and surveys which inform campaigns.
Section B: Citizens’ and legal residents’ electoral rights
All citizens and legal residents have the inalienable right:
§ 1. To participate in public affairs under equal conditions, either directly or through freely elected representatives in periodic elections of proven transparency, validity, and accuracy.
§ 2. To run for office as a candidate for any political or representative office under equal conditions and according to the requirements specified in the CSL.
§ 3. To participate in the parliamentary law-making process, either directly or through associations.
§ 4. To promote recall elections of elected officials, citizen legislative initiatives, and citizen initiative referenda, within the forms and conditions stipulated in the CSL.
§ 5. The CSL shall incorporate mechanisms for citizen and legal resident participation, and shall regulate the exercise of these rights.
Section C: Referenda
A referendum is a binding consultation through popular vote over issues of vital importance, or legal provisions of regional, national or international scope. Initiatives that reduce rights and guarantees shall not be the subject of a referendum proposal. Referenda may serve the following purposes:
§ 1. Recall elections of elected officials and civil servants
a. Citizens can request a recall referendum for any public employee or non-elected office-holder in cases of serious neglect of their duties, or direct harm to the functioning of the public services they are responsible for.
b. The Citizen Participation and Referenda section of the CSL shall establish the requirements and conditions for holding citizens’ recall initiatives.
§ 2. Citizen Constitutional and Legislative initiatives
The CSL shall provide mechanisms for citizens to:
a. totally or partially reform this Constitution.
b. amend or supplement the CSL in any sphere.
c. determine membership in collective security and defence agencies and/or supranational organizations
e. appeal executive decisions
§ 3. Conflict resolution referendum
a. In matters of great importance to citizens, the President of the Scottish State or the Parliament may call upon the Scottish Electoral Auditor Board to hold a referendum to settle a situation of institutional conflict.
b. The Board shall also consider other conflicts to resolve through referendum.
Article V – Two alternatives Articles for Head of State : Maintaining the Hereditary UK Monarchy or directly electing the President of the Scottish State
Option 1 : Maintaining the UK Monarchy
Note : This Article was extracted and structurally adapted from Elliot Bulmer’s 2013 ‘A Model Constitution for Scotland’, and represents a constitutionally serious and valid means to maintain to the UK monarchy within a written Scottish constitution. This Article has not been adapted to fit within this constitution, but certainly could be if it was democratically decided during the constituent process to retain the UK Monarch. The Bullmer text and the meaning of the articles referred to can be found here.
Article V – The Head of State
Section A. The office of Head of State shall be vested in Elizabeth Windsor, and shall be hereditary in her heirs and successors, according to the laws of succession, regency and exclusion enacted by Scotland’s Parliament.
Section B. The Head of State shall be paid a Civil List, as determined by law, from which the expenses of the Royal Household in Scotland shall be defrayed. The royal accounts shall be open to scrutiny by Parliament.
Section C. The Head of State shall possess only such powers and functions as are expressly vested in him/her by this Constitution, and shall, where so stated, exercise these powers and functions solely with the advice and consent of the responsible constitutional authorities, as follows:
Subsection 1. Representing the liberty, independence and integrity of the Scottish nation, presiding over public ceremonies, and addressing the people on civic occasions and at times of crisis or emergency.
Subsection 2. Dissolving Parliament on the advice of the Presiding Officer in accordance with the provisions of Sections (5) to (8) of Article III.
Subsection 4. Granting or withholding assent to legislation, in accordance with the provisions of Section (17) of Article III.
Subsection 5. Appointing and dismissing the Prime Minister, in accordance with the provisions of Sections (2) to (6) of Article IV.
Subsection 6. Appointing members of the judiciary in accordance with the provisions of Section (3) of Article V.
Subsection 7. Granting pardons on the advice of the Minister of Justice in accordance with the provisions of Section (11) of Article V.
Subsection 8. Appointing certain members of Independent Commissions in accordance with the provisions of Section (5) of Article VIII.
Subsection 9. Acting as Sovereign of the Order of the Thistle, and awarding civic honours, according to law, in recognition of public services.
Subsection 10. Serving as the ceremonial Commander—in—Chief of the Armed Forces, accrediting and receiving ambassadors, and performing other associated duties, as directed by the Council of Ministers.
Subsection 11. Appointing officers of the Royal Household and Great Officers of State whose appointment is not otherwise provided for by this Constitution or by law.
Subsection 12. Attending the General Assembly of the Church of Scotland, in recognition of its legal status as a national church.
During the absence of the Head of State from Scotland, or inability to perform his or her duties, the constitutional powers and functions of the Head of State stated in Section (4) of this Article may be delegated by letters patent to a ‘Lord High Commissioner’, who shall act as the official representative of the Head of State. Subject to any provisions prescribed by law, the Lord High Commissioner shall be appointed by the Head of State, on the joint nomination of the Prime Minister and the Leader of the Opposition, and shall hold office during the Head of State’s pleasure. No Member of Parliament, nor Minister, may serve as Lord High Commissioner.
Option 2 : Elected President of the Scottish State
Article V – The Presidency of the Scottish State
Section A: The President of Scotland shall be elected by universal popular vote, and shall exercise the following functions:
§ 1. Representing the liberty, independence and integrity of the Scottish nation, presiding over public ceremonies, and addressing the people on civic occasions and at times of crisis or emergency.
§ 2. Dissolving Parliament on the advice of the Presiding Officer.
§ 3. Withholding assent to legislation only in cases of legitimate demonstrable questions over its constitutionality.
§ 4. Appointing members of the judiciary.
§ 5. Granting pardons on the advice of the Minister of Justice
§ 6. Appointing members of independent commissions as prescribed by the CSL.
§ 7. Awarding civic honours in recognition of public service.
Section B: Election of the President of the Scottish State
§ 1. All citizens and legal residents living in Scotland over 25 years of age shall be eligible to run for President.
§ 2. The Presidential term shall last 5 years, limited to two terms.
§ 3. The President shall be elected in a two-round process. In the first, all party nominees qualified by the Scottish Electoral Audit Board shall be voted upon in a single ballot. If one candidate receives in excess of 50% of the vote he/she shall win the election.
§ 4. If no one candidate receives more than 50% of the vote in the first round, a second round vote between the two candidates who received the most votes shall be held two weeks after the first round. The candidate who receives more than 50% of the vote shall be elected president.
§ 5. The presidential and parliamentary campaigns shall be held under the same law, and limits.
§ 6. The President shall be sworn in one month after election.
Section C: Succession and impeachment
§ 1. In the case of death or incapacitating injury or disease of the President, the Presiding Officer will assume the functions of the Presidency pending a new election within 60 days.
§ 2. The President can be impeached with according to procedure in the CSL. Allegations deemed sufficiently grave for impeachment shall include, but not be limited to, gross violations of universally applied law and/or personal misconduct.
Section D. Impeachment shall not offer immunity from prosecution for any crimes committed.
Article VI– Parliament
Section A: Ultimate authority to amend and/or expand the Corpus of Scottish Law shall be invested in a unicameral Scottish Parliament.
§ 1. The Sphere of Parliamentary Law shall regulate the Scottish Parliament in the following areas.
a. The eligibility requirements for election.
b. The total number of Deputies, which shall not be fewer than 120 members, nor exceed 200 members.
c. The duration of Parliamentary terms.
d. The process whereby the Prime Minister is elected.
e. The process of Parliamentary dissolution.
f. How Parliamentary vacancies shall be filled.
g. How the Presiding officer shall be chosen.
h. The process of Parliamentary sessions and adjournments.
i. The composition and functioning of its corporate bodies.
§ 2. The Constitutional Commission shall oversee any modification and/or addition to the CSL to assure full conformity with the following criteria:
All must conform to this Constitution.
All research which informs the CSL must be verifiably based on empirical science employing sound, valid, and coherent methodology.
All changes to the text of the CSL must conform to the linguistic and stylistic standards of the CCL (III,A,2).
Any changes must demonstrably improve individual rights, broaden participation in the democratic process, and/or improve the legal functioning of Scottish State institutions for the broadest possible social benefit.
Section C: Additional Parliamentary Powers
§ 1. Parliament shall have the power, in time of war or public emergency, to extend its term of office for a period not exceeding 12 months, by means of a resolution passed by a two-thirds majority of its members.
§ 2. The Parliament shall have the competence to appoint select committees to inspect and oversee the government and to scrutinise modifications or additions to the CSL.
§ 3. Parliament shall have the authority to form administrative agencies to regulate the various sectors of the Scottish society and economy. Appointees and administrators heading these agencies shall demonstrably have appropriate and relevant experience to lead the agency for the betterment and improvement of its efficacy and benefits for broader society.
§ 4. Parliament may appoint Commissions and Boards of Enquiry under terms of the CSL, and the composition, duration and remit shall be specified by parliamentary resolution.
§ 5. Parliamentary committees, Commissions and Board of Enquiry shall enjoy the authority to subpoena official documents, files and other evidence, and the power to summon Ministers and other officials for hearings where they are compelled to answer the questions.
§ 6. Parliament, its committees and commissions, shall be open to the public and accredited press, and systematically video recorded unless a closed session is authorised, by a two-thirds majority vote, on the grounds of military secrecy or diplomatic security. A designated web site shall live-stream all proceedings and archive all footage for citizen’s access.
§ 7. The CSL shall specify the method for designating the Presiding Officer
§ 8. There shall be a Consultative Assembly to advise and assist Parliament and the Council of Ministers on matters of legislation and policy under terms established in the CSL. The Consultative Assembly shall consist of sixty members appointed in the manner prescribed by the CSL on a vocational and functional basis:
a. Twenty shall represent trade unions and craft and artisan guilds.
b. Ten shall represent chambers of commerce and small businesses.
c. Ten shall represent academia and the learned professions.
d. Ten shall represent farmers, crofters and rural interests.
e. Ten shall represent religious and charitable organisations.
Section D: All members of Parliament shall:
§ 1. Enjoy the freedom of speech and debate in Parliament, subject to the CSL sphere of Law of Parliament.
§ 2. Enjoy the freedom to vote in accordance with their consciences, free from imperative mandates, corporate and financial lobbying, binding pledges or intimidation.
§ 3. Be entitled to a moderate salary, and other incidental allowances which shall not exceed 50% of their annual salary, with limited legally justifiable exceptions, to be automatically published.
§ 4. Be subject to all of the same laws, regulations, and obligations as the rest of the population.
§ 5. Be majority-time resident in the constituency they represent for at least the three years previous to their election, and other eligibility requirements specified in the CSL.
§ 6. The CSL shall be modified over time to assure adhesion to these principles.
Article VII – The Council of Ministers
Section A: The executive power shall be vested in the Council of Ministers, which shall consist of a Prime Minister, a Deputy Prime Minister, and such other Ministers (including Junior Ministers and Ministers-without-portfolio) as may be required to conduct the Government of the State and represent the administration they lead under terms established in the CSL.
Section B: The Prime Minister shall be elected by Parliament from amongst its members, by open ballot and a simple majority vote. The duly elected Prime Minister-designate shall then be appointed by the President.
Section C: A Prime Minister shall be elected and appointed within 30 days after each parliamentary general election, and within 30 days after the death, resignation, or removal, of the former Prime Minister; and if a Prime Minister has not been elected during this time, Parliament may be dissolved, in accordance with the CSL.
Section D: The incumbent Prime Minister shall continue in office, following a general election, until their successor be elected and appointed in the manner prescribed in this Article; and during the interval between the death, resignation or removal of a Prime Minister, and the appointment of a successor, the Council of Ministers shall act in a caretaker capacity.
Section E: The Prime Minister shall be responsible to Parliament and shall be removed from office by the President if a vote of no-confidence is passed by Parliament by an absolute majority vote.
Section F: The Prime Minister may submit his/her resignation to the President on the grounds of illness, incapacity, or other due cause, but the resignation shall become effective only when endorsed by Parliament.
Section G: All other Ministers (including the Deputy Prime Minister, Ministers-without-portfolio and Junior Ministers) shall be appointed by the Prime Minister. They serve during the Prime Minister’s pleasure, but may be removed by a vote of no-confidence passed by an absolute majority and/or a citizens initiative.
Section H: The total number of persons holding ministerial office (including the Deputy Prime Minister, Ministers-without-portfolio and Junior Ministers) shall not at any time exceed one-fifth of the membership of Parliament. The Ministers shall be appointed from amongst the members of Parliament; provided, that up to one-third of the Ministers may be appointed from outside Parliament, on account of their specialist knowledge, experience, and qualifications. Ministers shall have relevant and extensive experience in the area over which they have ministerial competence, and clearly demonstrate a commitment to consistently improve its operation for the betterment of society.
Section I: The Council of Ministers, subject to the Constitution and the CSL, shall determine all matters of foreign and domestic policy. It shall direct the administration, conduct foreign relations, manage public finances, and ensure that the CSL is duly implemented and enforced. It may prepare draft legislation, and other business, to lay before Parliament.
Section J: The administrative officials, subordinate to the Council of Ministers, shall be organized as a permanent, professional and non-partisan civil service, which shall be based upon merit and shall be regulated by the Public Service Commission in accordance with the CSL.
Section K: The Prime Minister may appoint a number of Special Advisors, not exceeding 12, to advise and assist the Prime Minister in the preparation and delivery of policies. Special Advisors shall serve at the pleasure of the Prime Minister. They shall not be members of the permanent civil service, nor have any connection to undeclared outside interests, nor members of Parliament, but are subject to the Code of Conduct for public servants.
Section L: High command of the Armed Forces, subject to the Constitution and the CSL, shall be vested in the Council of Ministers.
Section M: No treaty or international agreement of any kind shall come into effect unless it is ratified by Parliament (either by a majority resolution or, to the extent that it concerns domestic law, by enabling legislation). Treaties delegating legislative, administrative, judicial, military or fiscal powers to a confederation, union, alliance or international organisation shall take effect only if ratified by a two-thirds majority of Parliament.
Article VIII – Judiciary
Section A: The judicial authority shall be vested in the Supreme Court, the Court of Session, High Court of Justiciary, Sheriff Courts, and such other Courts and Tribunals as may be established by the CSL.
Section B: The Supreme Court shall consist of seven members. It shall have final binding appellate jurisdiction over all questions concerning:
§ 1. The validity of modifications and additions to the CSL, treaties, under the terms of this Constitution.
§ 2. Constitutional judicial review and interpretation.
Section C: Judges of the Supreme Court, members of the Court of Session and High Court of Justiciary, Sheriffs, and all other members of the judiciary, with the exception of Justices of the Peace, shall be appointed by the President, on the advice of the Judicial Appointments Commission.
Section D: The Judicial Appointments Commission shall consist of the following members:
§ 1. The Minister of Justice, as convenor;
§ 2. The Advocate General, as deputy convenor;
§ 3. Two Senators of the College of Justice elected by their peers;
§ 4. A representative of the Faculty of Advocates
§ 5. Five lay representatives of the public, not being members of the judiciary or the legal profession, elected by Parliament for four-year terms.
Section E: Members of the judiciary shall serve a maximum of 2, 5-year terms during good behaviour. They may only be removed on the grounds of misconduct, neglect of duty, or incapacity, by means of a motion of censure passed by a two-thirds majority vote of Parliament, on the advice of the Judicial Appointments Council. The Judicial Appointments Council shall have the authority to suspend a judge, on full pay, for a period of up to three months, pending the outcome of Parliament’s decision in his/her case.
Section F: Judicial office shall be incompatible with all other public offices and with membership of any political party. Additional incompatibilities may be prescribed by the CSL.
Section G: The salaries and privileges of members of the judiciary shall be determined by the CSL, and shall not be diminished during their tenure.
Section H: Members of the judiciary shall be reassigned after their terms, or retire on pensions upon reaching the retirement age prescribed by the CSL. Early retirement may be granted by the Judicial Appointments Council on the grounds of illness or infirmity.
Section I: Subject to the provisions of this Constitution, the organisation, powers, structure, jurisdiction, privileges, and procedures of the various Courts shall continue as heretofore, until altered or amended by the CSL.
Section J: The Advocate General shall be appointed by the Council of Ministers, after consultation with the Judicial Appointments Council, for twice renewable five-year terms. The organisation of the Judicial Office, and procedures for the appointment of Attorneys General, shall be determined by the CSL.
Section K: The right of pardon, and of remitting punishments, shall be vested in the President, and exercisable upon the advice of the Minister of Justice, given after he or she has considered the recommendations of an independent Pardons Board to be established according to the CSL.
Article IX – Regional and Municipal Government
Section A: Each District and Municipality may develop their own Citizens Charters and other governing documents, in accordance with this Constitution and the CSL.
Section B: For the purposes of local government and administration, Scotland shall be divided by the CSL into Regions and Municipalities. The borders and composition shall be adaptable through due process and local referenda, according to the CSL.
Section C: All citizens and legal residents of each region or municipality shall elect the Mayor, Vice-Mayor or other offices created by their citizens charters to preside over the Council and to represent the Council in its external affairs.
Section D: District and Municipal Councils shall have such legislative, administrative and fiscal competences devolved to them in accordance with the principle of subsidiarity, the scope and domains of which shall be determined by their Citizens Charters in harmony with this constitution and the CSL.
Section E: Regions and Municipalities may be further sub-divided into Communities and Burghs, each with its own Community or Burgh Council. The boundaries, powers and organisation of the Community and Burgh Councils shall be determined, by District and Citizens referenda, in accordance with the CSL.
Article X – Ombudsmans
Section A: Ombudsmans Bureau
§ 1. The Ombudsman’s Bureau shall protect and defend the rights and freedoms recognized by this Constitution, and shall exclusively oversee:
a. The management of the civil service of the Scottish State, and the activity of public or private organizations, be they associated or dependent.
b. The activity of private companies which manage public services, or perform activities in the general or universal interest, or equivalent activities in an agreed or indirect manner.
c. The activity of persons who have a contractual bond with the administration of the Scottish State or the dependent public agencies.
d. All other activities and functions determined by the CSL.
§ 2. The Ombudsman’s Bureau shall supervise the activity of local administrations, and public or private organizations be they associated or dependent, in a subsidiary manner in relation to local auditors.
§ 3. The Ombudsman’s Bureau can request reports from various institutions over how to improve the application of fundamental Constitutional rights, and submit modifications or additions to the CSL to the Parliament for consideration.
Section B: Court of Financial Auditors
§ 1. The Court of Financial Auditors externally audits accounts, financial management and administrative efficiency of:
a. The local and national governing bodies of the Scottish State and the rest of the public sector of Scotland, as well as public or private organizations be they associated or dependent.
b. Public resources used by private companies that manage public services, or perform activities in the general or universal interest, or similar activities in an agreed or indirect manner.
c. Public resources used by persons under contract with the administration of the State and by dependent public agencies.
d. All other financial resources and agencies determined by the CSL.
§ 2. Specifically, the Court of Financial Auditors shall effectively monitor the administration’s transparency to eliminate fraud and corruption.
§ 3. All persons and agencies listed in paragraph 1 of this Article shall submit their accounts to the Court of Financial Auditors under the terms established by law.
Section C: Environmental Audit Board
§ 1. The Environmental Audit Board serves to protect the right to common property and the environment for current and future citizens, and to this end shall:
a. Oversee the proper implementation of all public and private activities.
b. Guarantee the citizens’ right to receive permanent, continuous, correct, and proven information over the condition of the natural common property, the natural environment, the impact of planned actions and their implementation.
c. Ensure that all projects, if appropriate, have the mandatory and proper report evaluating its ecological impact.
d. All other functions as determined by law.
§ 2. On request of the Council of Ministers or the Parliament, the Environmental Audit Board shall report on the environmental impact of modifications or additions to the CSL submitted to the Parliament for debate and adoption.
Section D: Electoral Audit Board
§ 1. The Electoral Audit Board is the authority in charge of the electoral processes, and shall have the following missions:
a. Prepare, monitor, update, and publish the electoral roll.
b. Call, organize, and supervise all elections, referenda, consultations, as specified by the CSL.
c. Define the composition and roles of electoral boards.
d. Oversee the vote count and announce the results.
e. Maintain the strict neutrality, transparency, and proven accuracy of the processes.
f. Facilitate the broadest possible political participation through the most advanced technology currently available.
g. Promote and oversee the procedure for constitutional reform.
h. All other functions determined by this Constitution and the law.
§ 2. The Electoral Audit Board hears the claims and appeals in electoral issues, under the terms determined by the CSL, with the authority to overturn electoral results if the infractions are sufficiently grave.
Section E: Broadcasting and Media Audit Board (BMAB)
§ 1. The BMAB is the authority in charge of guaranteeing the accuracy, veracity, decency, and honesty journalistic practice for those media outlets seeking accreditation in Scotland.
§ 2. The BMAB shall have the competence to develop specific media and journalistic standards, included but not limited to the following:
a. Proven accuracy of information presented, always with the opportunity and legal obligation to correct or retract after the fact when information is clarified or shown to be demonstrably false.
b. Respect for all people’s privacy and human rights, with the right of the BMAB to take the conduct of the entire media corporation into consideration when evaluating the eligibility for accreditation.
c. Use of deceptive editing and manipulation to convey false impressions shall be taken into consideration.
d. Character assassination and ad hominem attacks on anyone, or any other violations of privacy and human rights.
§ 3. All media organizations operating in Scotland receiving accreditation:
a. Shall have access to media accreditation for all local and national governments in Scotland for all their journalists.
b. Along with all citizens, legal residents, and accredited research groups, uniquely have access to Freedom of Information requests from the Scottish Governments.
c. Shall be eligible for grants from the Citizens Media Fund, created to replace the licence fee of the former UK State Broadcaster.
§ 4. All effective legal tools shall be employed to ensure the demonstrable impartiality of the BMAB.
Section F: Composition and functions of the auditors
§ 1. Each audit office consists of five auditors. They shall be elected for five year terms, renewable once, through universal, free, equal, direct, provably valid, and secret suffrage. Single-name constituencies shall be used to ensure adequate representation throughout Scotland.
§ 2. The Electoral Law domain of the CSL shall establish the candidacy requirements to elect independent, responsible, impartial, wise and professional auditors with proven relevant expertise, as appropriate to each auditors body. The Electoral Audit Board shall validate the candidates according to the CSL.
§ 3. The auditors shall operate with impartiality and independence, are inviolable for the opinions expressed in the discharge of their duties, and can only be removed from office through recall elections for the reasons established by law.
§ 4. The law shall regulate the legal status of the members of the Electoral Audit Board, their eligibility requirements, reasons for dismissal, and the powers attributed to them. Auditors cannot be members of political parties, and cannot engage in any other public or private professional activity, except those expressly determined by the CSL.
§ 5. Each auditors body shall enjoy regulatory, organizational, and functional autonomy, with a budget sufficient to effectively carry out their functions, according to the CSL.
§ 6. Each auditor body shall prepare their own budget, which shall be submitted for the approval by the Parliament, and shall be held accountable.
§ 7. Public administrations and the agencies and persons shall fully cooperate with auditors. The sanctions and the mechanisms to enforce compliance shall be established by the CSL.
§ 8. Each auditor body shall provide the Parliament with an annual report of its activities, and held accountable. These reports may include suggestions to modify the CSL to improve the quality of their work.
§ 9. In the discharge of their duties, and to ensure compliance with their objectives, auditors have the authority to impose sanctions, under terms established by the CSL.
Section G: Board of Auditors
§ 1. The Board of Auditors coordinates the auditors and is composed by a representative from each auditors body and a representative from local auditors.
§ 2. The Board of Auditors shall:
a. Coordinate the proper functioning of the auditors body and their employees.
b. Elect and appoint members of regulatory agencies, on a proposal of the relevant auditors body.
c. Organize the shared services of the auditors bodies.
d. Summon local auditors to discuss issues relating to their jurisdiction.
e. Perform any function similar to those enumerated above, as expressly determined by law.
§ 3. The Board of Auditors meets on request of any of its members, and is chaired by an auditor elected for each session. The decisions of the Board of Auditors are taken by a majority vote of its members. In case of a tie, the auditor chairing the meeting shall cast the deciding vote.
§ 4. All public servants and workers have the duty to appear before the Board of Auditors upon a valid summons. The request must be strictly related to the auditor’s functions, and shall never respond to political complaints.
Section H: There shall be numerous mechanisms for creating independent, non-partisan, commissions to focus on specific questions.
Article XI – Defence, Peace and Conflict Resolution and Foreign Relations
Section A: The Scottish State, through the Scottish Department of Peace and Conflict Resolution, shall be devoted to promoting internal and international peace and security, maintaining just and honourable relations between nations and peoples, fostering respect for international law and treaty obligations, and encouraging the settlement of international disputes through arbitration
Section B: Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially through the means of aggressive military actions, shall be unconstitutional.
Section C: Collective Security: The Scottish State may enter into formal collective security organisations but will only do so with the consent of the Council of Ministers and with a two-thirds majority endorsement of the Scottish Parliament.
Section D: Military Activity. Any deployment of Scottish Defence Forces, even if that deployment is to number just one single official, can only proceed after:
§ 1. a formal and public deployment decision by the Council of Ministers;
§ 2. a formal endorsement of that decision by the Scottish Parliament;
§ 3. a UN Security Council Resolution validating the deployment to which Scottish Defence Forces are to be committed.
§ 4. The requirements stipulated extend not just to Scottish Defence Force personnel but also to any Officers of the Scottish State (including police and prison officers) who might be sent to participate in training, assistance or development programmes in overseas conflict or post-conflict settings.
Section E: In the event of a failure to secure deployment assent from both the Scottish Parliament and the UN, it will be deemed unconstitutional for the Scottish Government to aid in any way the proscribed military or security activity in question. This ‘aid’ includes:
§ 1. providing financial contributions – direct or indirect – which might work to support the activity in question
§ 2. any donation or sale of material which might be seen to facilitate or aid the activity in question.
§ 3. allowing the use of Scottish land, coastal waters or airspace for any activities which may be connected with the activity in question.
Section F: Nuclear Weapons:
§ 1: The stationing of nuclear weapons in Scotland’s land and waters is prohibited. An exception shall be made for 2 years from the date when this constitution takes effect during which time nuclear weapons may be stored in Scotland prior to their removal. During this period all activity supporting the operational deployment of these weapons shall be prohibited.
§ 2. The Scottish State prohibits any of the following acts or activities relating to nuclear weaponry taking place on its soil, territorial waters or airspace:
a. The development, manufacture, possession or control of nuclear weapons;
b. The stationing or transportation of nuclear weapons by any means;
c. The testing or use of nuclear weapons;
d. The dumping or disposal of nuclear weapons grade radioactive material or nuclear waste.
§ 3: Transportation through the territory of Scotland of nuclear weapons, parts or components thereof, as well as of nuclear waste or any other nuclear material designed or produced for weapons purposes shall be prohibited and will be deemed a criminal offense.
Article XII – The Corpus of Scottish Treaties, Charters, and International Agreements
Section A. The Corpus of Scottish Treaties, Charters, and International Agreements shall include all the international agreements which Scotland has adopted.
Section B. The Corpus of Scottish Law shall be consistent with the treaties, charters, and international agreements which have been adopted.
Section C. Any clause of any treaty which is contrary to this Constitution shall not be applied, with such clauses annotated with valid justification.
Section D. Mechanisms for adoption of treaties and charters shall be specified in the CSL, which shall include:
1. Mechanisms to implement international standards on the CSL.
2. Mechanisms to withdraw from treaties
Article XIII – Land and territorial waters, and the environment
Section A: The territory of Scotland comprises all the mainland and islands of Scotland, plus the territorial waters in place prior to 1999, as recognised by international law.
Section B: The totality of the territory, buildings, and other goods within its land and territorial waters requiring legal title in Scotland shall be registered and taxed exclusively with the Scottish government. Complete transparency on ownership is required for the bearer to register and maintain title. Land and goods for which legal title cannot be legitimately established according to the CSL shall revert to public ownership.
Section C: All use of eminent domain in the acquisition of land and property must be transparent and demonstrably in the public interest, conducted exclusively by public agencies of the Scottish government, with fair and timely compensation for expropriated property.
Section D: The powers of the Scottish land management agency shall include, but not be limited to, maintaining the title registry of land, assuring that EU and other subsidies are directed towards the valid recipients, and rigidly enforcing regulation based on peer reviewed science. Sufficient resources shall be furnished by the Scottish government to enforce these and other measures, and the CSL shall provide for the shielding of regulators from the influence of the entities they regulate.
Section E: Environmental Law
§ A: All environmental law shall be applied to the totality of the land and territorial waters in Scotland, including transport.
§ B: All persons, individually and collectively, have the right to the protection of the common natural resources of Scotland. These include natural systems created by the interaction of solar energy with air, water, soil, and subsoil.
§ C: All persons have the duty make responsible use of common natural resources, from an ecological, economic, and social perspective. The productive sectors are legally bound to use common natural resources in a way that does not degrade the environment or hinder regeneration.
§ D: All chemicals, devices, and techniques used in all industry and energy extraction shall be declared and regulated. Chemicals deemed too toxic to be used through exclusively peer-reviewed scientific methods shall be banned. All ingredients in all foods and drinks, including all those which are genetically modified, shall be clearly labelled on the package. Under all circumstances, the burden of proof shall fall on the industries to prove their products and techniques are safe, rather than on the state to prove their harm.
Article XIV – Financial Regulation
Section A: All banks operating in Scotland must separate their investment and commercial operations, and/or continuously prove that that there are sufficient reserves to guarantee consumer deposits in their commercial operations in Scotland.
Section B: The Scottish government shall have the authority to set the leverage ratio for investments and financial products which bind all financial institutions operating in Scotland. The repayment of any loan or credit in excess of 15% annual percentage rate interest shall not be compelled. Provisions shall be made by the CSL to assure that the interests of consumers are represented and respected in the financial regulation process.
Section C: Upon this constitution coming into effect, the Scottish government shall establish a sovereign wealth fund for all revenue from its natural resources within its territorial waters. All revenue from natural resources and energy production shall be publicly held and invested in the public sector.
Article XV –Public Services and Privatisation
Section A: All natural infrastructure monopolies, including but not limited to the electrical grid, water and wastewater infrastructure, gas and oil pipelines, and the railroad infrastructure shall be permanently publicly owned and maintained through public funds. There shall be a Scottish state-owned company operating in all natural monopolies, and the Scottish state shall regulate all sectors to ensure carefully managed and demonstrably fair competition.
Section B: All public services and institutions, including but not limited to refuse collection, police, prisons, schools, welfare, electoral boards, land and property assessors, and any other institutions established to exclusively serve the public interest, shall be publicly owned; operated, and regulated by the Scottish Government. Any private contracting for assisting the provision of services can be tendered, while facilitating companies of any size to participate in the bidding process.
Section C: The awarding of all government contracts on all levels shall be conducted through a transparent competitive bidding process, with legitimate reasons for determining the grantee made available for scrutiny to the public and the financial auditor before funds can be appropriated. All state contracts shall be published and transparent. Under no circumstances shall the denial, cancellation, or alteration of a pubic contract be legal grounds to sue the Scottish State.
Article XVI – Oath of office
The President, Ministers, Members of Parliament, Judges, and all other persons holding public office under this Constitution, shall take the following oath, with or without religious invocation.
I …………………………. solemnly affirm that I will bear true faith and allegiance to the people of Scotland, and that I will faithfully and conscientiously perform my duties as [name or title of the office] in accordance with the Constitution and the CSL of Scotland, without fear or favour.
Article XVII – The Constituent Process for the Scottish State
Section A : Initiation of the constituent process
§ 1. The Scottish Electoral Audit Board shall be established, in conformity with the rights guaranteed in this provisional constitution.
§ 2. The Electoral Audit Board shall call a referendum, and the following question shall be asked of all citizens and legal residents in Scotland: “Based on the Right of peoples’ to democratic and peaceful self-determination guaranteed under the United Nations Charters, do you choose dissolve the 1707 Treaty of Union and enact the Constituent Process for the Scottish State ?” Yes / No
§ 3. A ‘Yes’ vote by simple majority shall initiate the Constituent Process for the Scottish State.
Section B : Refinement of this Draft Constitution and the Corpus of Scottish Law
§ 1. The Constitutional Commission shall be established to coordinate the refinement and oversee the technical drafting of this Constitution and the Corpus of Scottish Law.
§ 2. The Constitutional Commission and all other commissions shall be staffed exclusively by competent, humane people of good will from a variety of relevant backgrounds and professions.
§ 3. Pending final ratification of this Constitution, EU, UK, and Scottish law prevailing before enactment shall continue to apply during the constituent process in all spheres.
§ 4. Commissions shall be established in each sphere of the law, and shall transform, simplify, and modernize the CSL to make it fairer, more equitable, humane, and accessible. It addition, they may suggest changes to the constitution which could better integrate and clarify the constitution and the law, which shall be considered by the Constitutional Commission before final ratification.
§ 5. These commissions shall rewrite the legal code in their respective sphere, after which the text shall undergo a technical correction process by the Constitutional Commission to assure conformity with this Constitution CSL and the linguistic standards in (III, A, 2) before incorporation in the operational
Constitutional and Legal Framework for the Scottish State.
Section C : Ratification of this Constitution and the Corpus of Scottish Law.
§ 1. Within 18 months of voting to enact the Constituent process for the Scottish State, once the draft Constitution and Corpus of Scottish Law has been finalized, it shall be put to the totality of the Scottish electorate for ratification, a ‘yes’ vote thus definitively establishing the Scottish State.
§ 2: Once ratified, this Article XX shall be removed from the constitution, as it will have served its function and will no longer be required.
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