Constituting an independent Scotland

The SNP’s silence about the constitution of an independent Scotland in recent years has been resounding.  It adopted a draft constitution for an independent Scotland in 2002 (hard to find online, but a copy is here), following work led by the late Neil McCormick.  In more recent times it has been silent on the point, and the only work on the subject has been done by an independent group, the Scottish Constitutional Commission, which led to the publication last year of a ‘model constitution for Scotland’ by W. Elliott Bulmer.  (Details of that are here, and the Constitutional Commission’s website is here.)  In a speech in London on Monday, available here, Alex Salmond weighed into the issue, and proposed that an independent Scotland should have a written constitution, to be drawn up by a constitutional commission to be convened in 2016 following a Yes vote in the independence referendum.  The Scottish Government ‘s news release regarding the speech is here, and there’s coverage of it from BBC News here, the Scotsman (quoting me) here, and discussion in the Guardian (quoting this post) here.

Including social rights in constitutions is always problematic.  This is proposed in Bulmer’s Model Constitution as well as now by Salmond.  No matter how one qualifies it – a common formula, followed by Bulmer, is to refer to a right ‘as implemented by law’, with the intention of subjecting the safeguard to the policies determined by the legislature (but also making the legislature implement the right).  That’s far from perfect as each and every right, even expressed in such general terms, will attract a good deal of debate and campaigning.  Even when rights are left in broad terms, the problem is that their margins are always contestable.  Does a right to education extend to the age of 16, 18, 21 or is it lifelong?  Does it include the right to, say, free music lessons, or to lifelong adult education?  Is that a right to ‘vocational’ education, or to courses of wider interest?  Does a right to free healthcare include a right to free cosmetic treatment, or to immediate treatment (which would ban all waiting lists)?  Each general right opens up a host of further, detailed questions about what exactly it  means.

Whatever view a government or legislature may take of such matters, someone is likely to challenge them – and that dispute will end up in the courts.  The effect of including social rights in a constitution is to give a greatly expanded role to the judges in deciding about such rights.  And that means that the judiciary start to have a professional interest in the scope of such a constitution, as well as that they share with all citizens.  Unsurprisingly, this sort of social right was left out of the McCormick constitution – Sir Neil, as a lawyer, understanding how difficult they would be to formulate.

As regards process, what’s now proposed is a convention with direct involvement from citizens as well as political parties and ‘civic Scotland’.  There’s no suggestion of how the participants will be selected, what timescale there would be for its work, or what process there would be for adopting a constitution once the convention had formulated a draft.  Would it require some parliamentary super-majority, approval at a further referendum, or what?  Salmond’s speech is silent on these points.  And, of course, once such a wider process starts, it will raise much wider issues, such as whether an independent Scotland should retain the monarchy, as the SNP currently proposes, to the discomfort of many in the party and the wider pro-independence campaign.

In truth, this proposal seems more about the referendum campaign than about the substance, with three examples of what would be in the constitution chosen to highlight differences between current UK practice and the SNP’s aspirations for an independent Scotland.  But raising them in this way highlights the rocky road there is from the present position of Scotland to what would be needed for an independent democratic state.  That is reflected in what Salmond says about the post-referendum process, which seems to be new.  He says that legislation will be in place for the ‘transfer of sovereignty’ in May 2016.  That is a pretty optimistic assumption, as it assumes that the ‘top-line’ negotiations can be concluded within 12 months of a referendum.  Given the complexity of the issues, it’s doubtful whether that is achievable – and it certainly will not be if issues like EU membership or ‘non-nuclear’ NATO membership are as complex and tricky to resolve as they increasingly appear.  It also assumes that the new House of Commons elected in 2015 is willing to give accelerated passage to an independence bill.  There would also need to be a transition period between the passing of legislation and ‘independence day’.  My own estimate, for what it’s worth, is that there would be at least three years between a referendum Yes vote and ‘independence day’, even assuming a smooth and straightforward negotiation and a willingness to leave many detailed issues to be resolved later.

Add to that a post-referendum process of also formulating the constitution of an independent Scotland, the road to statehood starts to look a much messier process.

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4 Comments

Filed under Courts and legal issues, Scotland, Scottish independence, SNP

4 responses to “Constituting an independent Scotland

  1. I like to think a written constitution would be a good thing. As to what form it should take, I don’t believe the SNP have a monopoly on that. Lesley Riddoch has written some interesting pieces recently on the way in which the people were allowed to drive the drafting of the Icelandic constitution recently. In our case the model to be adopted would be down to the Government we elect in 2016, and that might or might not be SNP.

    But whatever approach is adopted, surely the fact that we could even consider having a proper written constitution rather than the current muddle is one of the positive possibilities offered by the Yes campaign. Vote no – and we continue with nothing concrete in place. Vote yes and we can discuss how best to enshrine our constitutional rights.

  2. WEB

    A few quick points:

    (1) This is nothing new from Alex Salmond. SNP has been committed to a written constitution for a very long time. The inclusion of socio-economic rights was written into early SNP proposals by Neil MacCormick – and can even be traced back to very early texts produced in the 1960s.

    (2) While British-derived constitutions are often limited to narrow bills of rights based on the European Convention (e.g. Jamaica, St Lucia), it is common for European Constitutions to include socio-economic rights. It’s hardly as if Salmond is proposing anything particularly radical or unusual in asserting, for example, a constitutional right to education.

    (3) A constitution is not just a legal document that defines justiciable rights. It is also – I’d say more so – a political document that defines the values and aims of a state (liberal-neutralists may shudder at the idea of a state having any values and aims, but for a civic-republican this is less problematic, especially as these values and aims may be grounded in widespread agreements and updated from time to time by amendment). It is entirely appropriate to make certain constitutional commitments on matters of principle, which, being widely shared amongst the political community, proclaim what a country stands for, and what it will not stand for. Being nuclear-free, or having a commitment in principle to universal public education, could fit in this category. These commitments need not bind Parliaments too tightly – they can either be framed in ways that make it clear that Parliaments and not the courts are responsible for their translation into policy (Ireland, India and Malta being examples of such non-justiciable provision).

    (4) Socio-economic conditions are ‘constitutional matters’, in the widest sense of the term, because they concern the distribution of power, influence, wealth, prestige and opportunity in society. In an Aristotelian sense, they distinguish polity from oligarchy.

    (5) Magna Carta is nothing without the Charter of the Forest.

    (6) The ‘Model Constitution’ is advanced as an example of what a good Constitution for Scotland could look like – it is an example, not the example, a suggestion, not the answer, and it has never been advanced as anything more than that.

    (7) The UK has long experience of giving countries their independence, even countries like Malta where independence seemed ‘impossible’ for all sorts of security reasons that made perfect sense to imperial-minded mandarins in Whitehall. The Scottish Government’s time-table is very realistic, given a modicum of goodwill on both sides.

  3. Alex Gallagher

    A constitution should define general rights…. freedom of expresion, politics, separation of justice, religion, from politics and so on.

    Specific rights, e.g. the right to bear arms, are more problematic and should be left to free political discourse to address and adapt to the times and needs.

  4. Chris

    I agree that a written constitution for the UK, incorporating devolution, should be a short document defining rights of the citizen and responsibilities of the constituent parliaments/governments (E,S,W & NI) and the UK government. It could actually be formed as a new act of union of the UK which would repeal the previous acts of union, the act of settlement etc, as well as the Scotland, Wales and Northern Ireland Acts*. The new act of union would be the primary legislation with all other pieces of legislation being “set aside” by UK supreme court if found to be in conflict with the new act of union.

    *There would no need for detailed devolution acts of the current UK parliament as the new act of union/ constitution would simply state “That each of the constituent countries of the United Kingdom of England, Scotland Wales and Northern Ireland shall have its own parliament to legislate for all matters except those transferred by this constitution to the UK parliament”. How these parliaments function is up to each parliament as long as there is no conflict with the new act of union of the UK.

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