‘Higher’ Law…

…or “Constitutions on ketamine”.


So, The Smith Commission. Remember that? One of the recommendations in its Final Report was that:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions. ” [para 21]

This was, in turn, translated into the Draft Scotland Clauses 2015 (what would become the Scotland Bill 2015) in s.1, which would insert the following into the Scotland Act 1998:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional Arrangements.

This immediately attracted comment as an odd position. On one hand, it was legislating for the permanence of the (or, indeed “a”) Scottish Parliament, but on the other it was absolutely useless. It is a fundamental principle of Parliamentary Sovereignty that Parliament cannot bind its successors. Any law, no matter how important, can be undone by a majority of Parliament voting to repeal it.
This means that potential the proposed ‘permanency clause’ is legally nothing more than a legislative ornament.
This is what the Law Society of Scotland were getting at in the statement they released yesterday. The current LSoS president, Alistair Morris, said that in this respect, this was merely a “…political declaration than any matter of law…”, precisely because a parliament, at present, cannot bind its successors. He suggests that, while there may be some alternative form of words that could work, there may be a more fundamental problem to enshrining the Scottish Parliament in the constitution, and that to overcome it we would have to consider some form of “Higher Law” :

Indeed, the concept of the sovereignty of the UK Parliament may, at least in legal terms, put a limit on the ability to deliver the intentions of the Smith Commission in this area.

Across the Irish Sea, it seems that our nearest neighbours may have taken the ‘Higher Law’ idea a bit too literally. Yesterday their Court of Appeal released the judgement in a constitutional case which, in a round about way, lead to certain drugs being legalised in Ireland for about 24 hours.
The material facts are that, in 1977 the Irish Parliament (The Oireachtas) duly passed the Misuse of Drugs Act 1977. Section 2(2) of that Act gave the Government the power to, without going back to the Oireachtas, make an order that would add a new substance to the list of substances the Act banned as if it had always been on the list. Since 1977, the government had made several orders doing just that, banning ecstasy, ketamine, crystal meth and other drugs within Ireland. All in all, over 120 drugs were banned using this method.
However, this case involves a man challenging his prosecution for possession of ‘methylethcatinone’ on the basis that the s.2(2) order banning it was unconstitutional. In Ireland, having a codified constitution which is a Higher Law than all other laws, all other laws must conform to it. Specifically he said that the government actions contravened Article 15 of the Irish Constitution, which states that:

2(1) The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

2(2) Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

The argument the court accepted was that, the government were, in effect, making law by themselves, bypassing the Oireachtas completely, so this didn’t comply with Article 15 of the Constitution. The result of this was that the orders banning possession of the drugs were struck down. It is still illegal to sell or supply these drugs to others, since they are regulated under different laws. Not all drugs are covered either – LSD,cannabis and cocaine are covered in the 1977 as passed, not by an order, so are still illegal to possess.
The Government, just in case the ruling went against them, had prepared legislation that was sped through the Dail (the lower house) last night and then the Seanad (the Senate) this morning. Then the President will sign it and all will be good again…but because of unusual Irish Law-making practices, the Law cannot come into force until the next working day after it is signed, that is Thursday Morning at 00.01am.

I bring these two ideas up in conjunction because I think they show an interesting contrast. In Scotland, and the UK more generally, we’re keen to consider a codified constitution, and most people see a Higher Law included in that. The idea that the Scottish Parliament could be abolished by 326 MP’s deciding to isn’t one  a lot of people like. While there’s a political barrier there, people like the idea of the legal certainty a Constitution would bring. Even during the #IndyRef, the idea of enshrining rights to (e.g) housing was floated by the SNP, without any real analysis.
The news from Ireland shows us the other side, where an inarguably sensible provision in the Constitution (That Parliament should make the laws) has thrown up an unexpected obstacle to achieving an entirely legitimate aim. In this instance, it’s quite amusing and not liable to unwind a major arm of the state, however, consider America, where it seems that just about every government programme is challenged on constitutional grounds. What any potential UK Constitution would look like, it’s position in our legal system, and most importantly its content need careful consideration

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