Scottish Popular Sovereignty on Trial

Victims, Witnesses and Justice Reform Bill will alter Scotland's Constitution without the People's consent

Henry Ferguson explains why we should be worried by the Scottish Government’s attempt to alter the Scottish Constitution - removing the right to a trial by jury (in rape cases) and scrapping the not proven verdict - without the People’s direct consent. Both principles are under attack in the Victims, Witnesses and Justice Reform Bill currently making its way through the Scottish Parliament. If the Scottish People are truly sovereign, then they should have the Political Rights to exercise their sovereignty over Parliament and Government, which means they should be able to stop bad legislation in its tracks. To do that, the words ‘subject to referendum,’ must be added to any bill that alters Scotland’s Constitution. Will the Scottish Government listen?

This coming week at Holyrood will be very interesting because the second chapter in Scotland’s sorry tale of direct Political Rights is about to unfold. But it’s also historic. For the first time, the People have taken steps to request what is referred to internationally as a Mandatory Referendum.

Chapter one

Chapter one took place last September when the Scottish National Congress Steering Committee (SNC) submitted a response to the government’s proposed Victims, Witnesses and Justice Reform Bill (Victims Bill), a bill that would allow juryless rape trials and scrap the not proven verdict. The SNC requested “that the Scottish Government….introduce no legislation which alters Scottish constitutional provision except with the addition of the words, ‘subject to referendum’.”

SNC opposes the proposed suppression of two principles enshrined in Scotland’s constitutional history - the not proven verdict and the right to trial by jury. It’s accepted international practice that constitutional change be approved by the People in a referendum and the Scottish Government recently endorsed this principle when it stated, “A constitution….should not be vulnerable to change at the whim of the government of the day or of a simple majority in parliament.”

Political Rights

Mandatory referendums are one component of direct Political Rights (referred to as Direct Democracy (DD)). Two others are Optional Referendums and Popular Initiatives. Direct Political Rights are a fundamental Human Right of all citizens under Art 25 of the International Covenant on Civil & Political Rights and, although this covenant was ratified by the UK in 1976, ScotGov has done precisely nothing to incorporate DD in legislation. In order to give real meaning to the term Popular Sovereignty, Scotland desperately needs its own Political Rights Act - even if, for the moment, it is applicable only to devolved matters.

In this big picture of Human and Political Rights there’s no doubt Scotland’s constitutional principle of Popular Sovereignty is under attack and on trial. Will the trial be a fair one? Of course it won’t - it can’t! - because the Scottish Parliament’s Criminal Justice Committee (CJC), Government and MSPs/Parliament will together be acting as Procurator Fiscal, Judge and Jury and, even worse, the party suffering prejudice, the Scottish People as represented by the SNC, can’t be represented. The SNC wasn’t called by the CJC as a witness.

This contravenes Art 25 of the above international covenant in which all citizens have an inalienable right to direct participation in how the country is run.

Chapter two

Chapter two is expected to be published this coming week when the CJC issues its Stage 1 report on the Victims Bill to Parliament. It will be extremely interesting to see whether or not it accepts the SNC request for a Mandatory Referendum. My personal bet is that it will be either suppressed or mentioned in the report but leaving MSPs, in their wisdom, to decide at a later date.  In other words, watch this space.

Chapter three

And that’s where Chapter three comes in. Parliamentary debate has been scheduled for the next session between 15-26 April and that’s when MSPs will find themselves face to face with their constitutional responsibilities. Should Parliament choose to ignore the SNC request as it undoubtedly can do according to existing legislation? Or should it acknowledge the Human Rights reality of Art 25 and vote in favour of a Referendum, leaving the last word to the People?

And then what?

It should be noted that there are other Parliamentary stages to follow, so amendments to the Bill are likely at some point. That’s up to MSPs because, at least until now, they’ve been running the show.

That’s not to say that between now and 15^th April the People should just sit around twiddling their thumbs. For those who believe the draft Bill is “Bad Legislation”, then now’s the time for the People to play their part. How?

By:

-       Organising email and letter-writing campaigns to MSPs and the CJC

-       Launching a petition to establish Political Rights with respect to all devolved matters

-       Demonstrating outside Parliament prior to the Parliamentary debate(s);

-       Packing the public benches during Parliamentary debate(s);

-       and anything else you can think of to demonstrate that, in Scotland, it’s the People who are entitled to the last word.

For those who would like to know more about Direct Democracy (DD) and Decentralised Direct Democracy (DDD), please check out the new website:  wecollect.scot  - it’s packed with authoritative educational materials and information.

If you’d like to know more about the DD cover-up, then the annex “Clearing the Smoke” is the place to go. However, the most important practical message for People to take home is the DDD case study described in the Foreword, on how Scotland managed to keep its water in public hands.

Henry B. Ferguson

Sion, Switzerland