By Mark McNaught
Among the many opportunities offered by independence, perhaps the most important for creating a more egalitarian society is a complete re-codification of the legal system into a comprehensible, accessible, relevant, and applicable corpus of laws. Laws should be clear and understandable to all, so that they can be correctly abided by and not exploited.
The legal 'system' which currently applies to Scotland, and in most countries for that matter, is a mess. There are UK laws dating back centuries, still technically in effect, which have absolutely neither relevance nor bearing on modern society. The Incitement to Mutiny Act of 1797 was only repealed in 1998. The Servants’ Characters Act of 1792 is still on the books.
Under Scottish law, the Removings Act of 1693 is still on the books, as well as The Protestant Religion and Presbyterian Act of 1707, regardless of the draconian policies they were intended to enforce.
While many of these laws have 'no known outstanding effect', it is absurd that they still exist, and could potentially be applied.
While most UK jurists would undoubtedly agree that these obsolete laws should be scrapped, Westminster can only repeal or amend them, and legal housecleaning is not a priority. A coherent and understandable corpus of laws does not exist.
Another problem is that MP’s are often not competent legislators, and often adopt legal gibberish posing as laws to serve the interests of themselves or those who bribe them, which can be interpreted in any fashion by some lawyer. How many people over the centuries have been prosecuted, jailed, and even executed for breaking absurd laws by aristocrats who simply wanted them removed? Ask the ghost of Thomas More.
An independent Scotland, equipped with the proper constitutional tools, could create a living corpus of laws, rather than a mass unmarked legal graveyard.
During the transition period after a 'yes' vote, an appointed commission could oversee the consolidation and redrafting of Scottish laws into a single corpus to be published online. There are undoubtedly many retired lawyers of good will who would be delighted to help recast Scottish law. Inheritance, divorce, property ownership, taxation, employment, etc. could all be redrafted to be simple, relevant, effective, laws in conformity with a written Scottish constitution.
Upon independence in 2016, the Scottish parliament would approve re-codification packages in these various areas of law until the process is complete. A written constitution would mandate that all laws be written so that any ‘reasonable person’ could easily understand and abide by them. Current UK law in that area would apply until it is replaced.
For example, repressive UK Thatcherite anti-union labour laws could be scrapped, and replaced with laws assuring a constitutionally guaranteed right to form a union and collectively bargain.
A commission could be established to oversee the corpus of laws, and suggest changes in the laws and their wording to adapt them to the current context, all of which would need to be approved by the Scottish parliament. This commission would serve as the 'gardener' of the legal system, picking out the weeds, clipping the hedgerows, and suggesting changes that would make it more coherent, fair, and effective.
Independence will also afford the opportunity to go through the 14,000-odd treaties to which the UK is currently signatory, scrap colonial slave era treaties and charters, and other barbaric and irrelevant agreements. An up-to-date, adaptable corpus of treaties can developed which reflect the international engagements Scots wish to enter into.
Last February, the UK government published Scotland Analysis: Devolution and the Implications of Scottish Independence. It was undoubtedly meant as a nihilistic scare story, asserting that Scotland was ‘extinguished’ under international law in 1707, and therefore no longer subject to any treaty or obligation the UK is bound by. Rough negotiations over belonging to the Monarchy, the Commonwealth, the EU, the WTO, and all other international organizations would follow.
While insulting, Scots should seize this doctrine and not let go. Not only would an independent Scotland not owe any of the UK national debt, but they can sign and be bound only by treaties that they wish to enter into, and which serve their interests. Maybe belonging to the WTO would compromise Scottish labour law, and Scots could give it a miss.
After a ‘yes’ vote, the Scottish government can simply place the EU treaties in their corpus of treaties and approve it in Parliament by the constitutionally mandated margin, thus becoming a new member state. Would the EU refuse to sign with Scotland, even while they are trying to absorb the Ukraine against Russia’s wishes? Get real.
A Scottish treaty commission can also look at the arrangements with the Channel Islands to see how their currency union with the UK works, and fashion a similar treaty which conforms to Scotland’s interests. During the transition negotiations, the Scottish and UK governments can work out the details and sign. If not, Scotland could seek a petroleum-backed currency union with Norway. Would the UK not sign out of spite, thus making energy more expensive because they have to have to pay higher currency exchange rates on Scottish North Sea oil? Get real.
Over time, Scots can sign on to the treaties and international agreements which are best for them, toss most of the 14,000 UK treaties into the dustbin of history, and adapt their treaty corpus over time.
The plethora of dead UK laws and treaties is historically understandable. Most were written with pen and ink. It was impossible to amend the content of the laws because they were written and promulgated on paper which could not be collectively changed on the numerous examples.
We now live in the digital age, where text of laws and treaties and be updated and discarded when no longer applicable, in agreement with other signatories. Independence will avail Scots of this opportunity to have the most innovative legal system on the planet.
Scotland can start with a blank slate, and show the world how it’s done. Who knows? Maybe even Westminster will adopt these ideas, and start extracting themselves from their feudal mire.