Scotland's future constitution

The Scottish government this week launched its blueprint for an independent Scotland. Here, legal academic Andrew Tickell (Lallands Peat Worrier) examines what it has to say about a Scottish constitution - and who would get to write such a thing.

Andrew Tickell
28 November 2013
Glasgow science centre.jpg

Glasgow Science Centre - where the white paper was launched/wikimedia

An independent Scotland would have a written constitution. The text of that constitution would be formulated not by parliament, but by a specially-convened convention.  The Scottish Government would be a participant in that process, but just one voice among many.  The document would set out the basic democratic institutions of the new State. It could and would also go further, enshrining the rights of the citizen. It is envisaged that these would extend at least to the rights protected in the European Convention on Human Rights, but other concepts might be included.  

A ban on nuclear weapons within the jurisdiction, perhaps. And social and economic rights of unclear scope and specificity, but potentially guaranteeing specific policies, such as free higher education, or a guarantee of a vocational training place.  This constitution would also, presumably, enshrine the SNP leadership's preferred policy position of retaining a monarchy as head of state. You'd imagine that they would hope to take this issue off the convention table. It is unclear how this is compatible with a constitutional moment, belonging to the people rather than to politicians, which the government merely enables and participates in, rather than stitching up ahead of time. This much we knew before this morning.

Has the White Paper shed any more light on the Scottish Government's constitutional vision, anchored it in place? Not really.  The new constitution is a tricky area for the SNP. On the one hand, their commitment to a participative process of formulation - however vaguely defined - precludes anything beyond a general statement of the sort of principles they'd like to have examined by that process. Anything more, and you can imagine the paranoid Better Together news release: "Tyrant Salmond in undemocratic attempt to dictate constitution" shock. You can't win.

But today's list of ideas doesn't substantially extend or elaborate those which the First Minister has already canvassed in earlier constitutional speeches. There are gestures towards entrenching the "existence and status" of local government, environmental protections, and a majestic but superlatively vague proposal to enshrine:

"... entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society."


On one level, I'm a little surprised that the Scottish Government didn't take the opportunity to supplement this list further. I wondered if, for political reasons and the centre-left Yes coalition they're pitching for, the SNP might have used the White Paper to promote the idea of enshrining collective bargaining and labour rights in the constitution. They haven't done so - yet.  The White Paper also demurs to express any view on whether these rights should be judicially enforceable, or form only an elegant, uplifting preamble. Substantive questions, perhaps, for another day.

I'd also wondered if the Government would at least have used the White Paper to get a bit more specific about the process for formulating this constitution. What would the messy, democratic enterprise look like, in outline? They largely eschewed doing so, beyond confirming that "the pre-independence legislation will place on the Scottish Parliament a duty to convene an independent constitutional convention to debate and draft the written constitution". It is perhaps useful to canvass a few of the - very real - issues about formulating the constitution which the Scottish Government could have and have declined to explore in any detail in the White Paper.

1.  We know the Scottish Government want this Convention to formulate the constitution. But how will its membership selected by an SNP government post Yes? By appointment? Special popular election of candidates, on a national or regional basis? Some combination of the two? They make reference to citizen-led processes elsewhere in the world, but are noticeably coy about committing to any preferred model. This may not be a problem. Formulating this constitution will be an enterprise in itself, and who gets a formal say rightly a source of controversy.  

Better, you might think, for the SNP to avoid getting into these debates too soon, but a slightly more specific hint might have been a politically helpful statement of principle.  A missed opportunity to underline that we're not - or shouldn't be - talking about forming up a new gaggle of old establishment worthies - think of it as Calman Plus - to filter through all the ideas promoted by the Plain People of Scotland. The constitution has to be protected from political fixing - but Lord deliver it from the suffocatingly familiar atmosphere of "civic Scotland" too. 

2. A few more cynical points. We know that they envisage the constitution will be drafted by this convention. But how do they envisage that it will be ratified by the people? Will politicians have any power to amend, or to decline to submit this text in its entirety to the people? If some sections of the draft are controversial, will they be subject to separate questions in any referendum? And who decides what is a "controversial" issue anyway?

This isn't an academic concern. Look at the fallout from a citizen-led process in Iceland. That pristine, crowd-sourced constitution is still sitting on the shelf, spiked by politicians due to the radicalism of some of the proposals.  It is perfectly conceivable that something similar happens in Scotland. Say if the question of the head of state because controversial in the convention process, as it doubtless will. Because the SNP's head of state commitment sits uncomfortably alongside a citizen-formulated constitution, a certain evasiveness here is understandable during the referendum campaign - but the issue is bound to bite eventually. 

3.  In the "justice" section, the White Paper notes "the Inner House of the Court of Session and the High Court of Justiciary sitting as the Court of Criminal Appeal will collectively be Scotland’s Supreme Court".  While transitionally, this seems like a reasonable arrangement, we shouldn't foreclose considering a couple of other alternative institutional models. We might echo the United Kingdom, and form a new Supreme Court to consider all matters, civil, criminal, constitutional.  

Alternatively, we might depart from the Anglo-Saxon fixations and form a new Scottish constitutional court in echo of a number of continental jurisdictions.  This constitutional court which would not, like a supreme court, sit at the apex of other courts, trafficking in ordinary litigation as well as constitutional issues, but would be founded independently from the ordinary judicial hierarchy.  Although our constitutional traditions are likely to pull us in the other direction, perhaps leaving the courts of Session and Justiciary as they are, separate but integrated - the idea at least warrants consideration.    

But like much else in the constitutional debate after this White Paper, that is a question for tomorrow.

 This piece first appeared at Lallands Peat Worrier

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