INTRODUCTION: A NEW KIND OF CONSTITUTION FOR SCOTLAND

In February 1998 the Judicial Committee of the Privy Council gave judgment in Matadeen v Pointu. This was an appeal to the Board sitting in London by the Mauritius minister of Education and Science from a decision of the Supreme Court of Mauritius to the effect that, in introducing new school exam regulations without due notice, the government of Mauritius had acted unconstitutionally because, inter alia, it had acted in a manner contrary to art 3 of the Declaration of the Rights of man and Citizen of 1793 (which provided that “all men are equal by nature and before the law”); as Lord Hoffmann notes, the 1793 Declaration had been “adopted by the Assemblée Coloniale of the Île de France on XIV Thermidor Year II (1 August 1794), no doubt unaware of the overthrow of the Robespierre government which had occurred five days earlier in Paris”. In holding that, on its true construction, the Constitution of Mauritius entrenched the protection of the individual against discrimination only on a limited number of grounds, the Board noted that “a self-confident democracy … may feel that it can give the last word, even in respect of the most fundamental rights, to the popularly elected organs of its constitution”. The Board accepted, however, that the Diceyan theory of absolute parliamentary sovereignty was “an extreme case” and acknowledged that the experience of many other countries was that “certain fundamental rights need to be protected against being overridden by the majority … by entrenching them in a written constitution enforced by independent judges”.