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.