Should we have a constitution?

Extract from the website of the Constitutional Commission

One of the most common misconceptions in Scottish politics is that the so-called ‘constitutional debate’ will be settled, one way or the other, by the independence referendum. It might not seem like it to the SNP, but independence is the easy part – and only the beginning. The history of decolonization in the twentieth century tells us that what follows after independence is crucial to the success or failure of the newly-formed State: many countries became independent from colonial powers only to fall into the hands of a corrupt dictator and lose what chance of liberty and prosperity they might have had. The challenge facing the Scottish Government is not merely winning a referendum on independence, but, more importantly laying good foundations for post-independence state-building.

Scotland is fortunate in that many of the institutions of state already exist, making our transition to independence easier than most. We already have a legal system, a judiciary, an administration, a Parliament, local authorities, an education system, and a tolerable infrastructure. Most of the rest – a small Scottish Defence Force to protect fisheries and oil rigs, a diplomatic corps, and a fiscal apparatus – can be constructed without excessive difficultly.

What we lack, though, is the means of bringing all these together and making them public – making the Scottish State into the common possession – the res publica – of the people of Scotland. This is the function of the Constitution, the fundamental law sitting at the apex of the legal, political and social life of the country.

We tend to think of Constitutions as dry legal documents, of interest only to lawyers, academics and bureaucrats. Nothing could be further from the truth. A Constitution is much more than a legal document. It is also a political, national and moral document. The Constitution is the charter of the land, the ark of the covenant, the supreme law that binds transforms a collection of individuals living in a common space into a society of fellow-citizens living under common rights, rules and responsibilities.

There are four reasons why Scotland needs such a Constitution. Firstly, and most optimistically, a new written Constitution provides the opportunity to further reform our democracy away from the Westminster Model, with its concentrated, exclusive, secretive and unaccountable power, in favour of a more Scandinavian model characterized by greater power-sharing, decentralization, openness and accountability. This, if embraced, will pay great dividends in terms of the quality of public policies and standards in public life. No more grubby boys clubs: all open and above board.

The SNP, in their previously published constitutional drafts, made significant headway in this direction. Even before it was fashionable, all SNP drafts for a Scottish Constitution have included proportional representation, a limitation on Crown prerogatives, and an empowered parliamentary committee system. Their greatest innovation is to recommending a minority-veto mechanism to replace the checking power of a second chamber. This mechanism, derived from Danish practice, would enable two-fifths of the members of Parliament to suspend non-financial legislation for up to eighteen months, unless over-ruled by a referendum.

Secondly, a written Constitution is necessary to provide legitimacy to the new Scottish State. A Constitution does more than just protect personal rights – important though that function is. It also legitimizes and institutionalizes public authority. It draws a line between the state and the government, between the res publica and those who at any moment happen to hold positions of power. It proclaims that the state is not a patrimony, in the possession of any one person or party, but is our common possession. It is therefore crucial to making an independent Scotland ‘work’ in the interests of its people, and not merely in the interests of its rulers. This reassures citizens that an independent Scotland will belong to all the people, of all parties and none, and not just to the SNP. Henry McLeish will be glad of this when he tries to become Scotland’s first Labour Prime Minister!

Thirdly, the distinction between a higher, constitutional law approved by the people and a lower, ordinary law made by Parliaments is the logical consequence of the SNP’s core belief in the sovereignty of the people. To talk about sovereignty of the people, and then merely substitute the sovereignty of Westminster for that of Holyrood, would be an unacceptable sleight of hand.

Finally, a written Constitution is not an optional extra. European and world opinion would make the adoption of a written Constitution necessary: the UK has, for historical reasons, managed to avoid adopting a written Constitution; Scotland, as a newly formed independent state, would not be able, even if it wished, to continue such an anomaly. The EU and the Council of Europe would rightly laugh.

The SNP also have tactical reasons for shifting their rhetoric from ‘mere independence’ to ‘state-building’.  Fear of state failure is one of the most effective anti-independence arguments: “Better the devil you know”; “Don’t let King Eck rule Scotland as his personal fiefdom.” A poster emanating from Willie Rennie’s office highlighted this vulnerability perfectly: drawing parallels with Qatar, it depicted a future independent Scotland as being ‘ruled by one man’ and having a death penalty.  The only way to address this vulnerability is to propose a written Constitution for Scotland that conforms to the best practice of other small European democracies, is technically sound, and has the broadest possible support. Publishing such a Constitution – preferably in as a detailed final draft, but at least in outline – before the independence referendum would go a long way to convince people that an independent Scotland would really be a ‘progressive beacon’ and a bastion of democracy.

This then, is the choice between us: to be under the domination of an arbitrary power which we do not control – whether that power sits in Westminster or Holyrood, and whether it goes under the name of UK PLC or Scotland Inc. – or to adopt a written, fundamental, democratic Constitution, and thereby to become fellow-citizens, joint and equal shareholders in the great co-operative enterprise of building a good community for all our people.