If there is a Yes vote to Scottish independence, the plan is to have an interim Scottish constitution and then a permanent constitution setting out, for example, the relationship between its governing institutions. One controversial point is that the Scottish Government proposes entrenching in a constitution ‘so many issues which are in effect policy preferences’. These preferences involve a mix of specific pledges, such as to ban nuclear weapons, control the use of military force and – according to today’s headlines – a right to free healthcare, as well as broader principles regarding equalities, environmental protection and minimum living standards.
For me, this prompts the identification of two things.
First, there is a debate to be had about the distinction between: very specific policy preferences, which can produce a much greater role for the courts, to help enforce constitutional provisions, and principles designed to have symbolic rather than legal weight. The latter signal some sort of collective belief about the world and, perhaps, can be used by governments, citizens, or interest groups, to remind public services about their broad obligations. They may be criticised because they create legal confusion – but the benefits, relating to the importance of these beliefs, may be greater than the costs associated with their unintended consequences (and, importantly, they are open to amendment).
Second, the Scottish Parliament has already faced this problem when, for example, producing mental health legislation. The Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 both contain statements of principle, designed not to be legally binding. Instead, they have two purposes: to signal to public bodies the principles on which their services are built; and, to send a message to service users that they deserve respect. The latter statement is difficult to overstate, since we are talking about a mental health service that could, for example, deprive people of their liberty. Consequently, one of the principles underpinning the Mental Health Act was ‘reciprocity’:
Reciprocity – Where society imposes an obligation on an individual to comply with a programme of treatment of care, it should impose a parallel obligation on the health and social care authorities to provide safe and appropriate services, including ongoing care following discharge from compulsion.
This use of legislation was opposed by some of the drafters of Scottish Parliament legislation, largely on technical grounds: why enshrine non-legally binding provisions in a legal document (or, as Bruce Millan put it, ‘The draftsmen didn’t like it – against the drafting tradition!’)? The answer is that, after a two year consultation process, the principles had huge symbolic and practical value – to show, after a long process, that the government had listened to mental health service users and interest groups, and to give bodies such as the Mental Welfare Commission the ability to use them, as a powerful reference point, when monitoring the work of mental health services. This came at a time when the UK Government was producing legislation with many similar elements but, in the absence of the same commitment to prioritising service user rights, it produced a long and tense stand-off with groups.
So, the law may not give principles legal weight, and we should not simply assert that they have an effect on policy outcomes, but it does give them policy-relevant importance, as a way to ‘frame’ the provision of services. It is worth considering this broader agenda-setting role alongside the discussion of the use and abuse of the law – a constitution is a political statement as well as a legal document.