One of the many attractions of an independent Scotland is the prospect that we will have our own written constitution. This alone is a pretty good reason for voting Yes. What makes it even more exciting is the prospect that we can participate in the process of devising and writing our new constitution. Before we get to this position we need to win a Yes vote and then to negotiate the details of the independence settlement. This will of necessity include some kind of interim constitutional framework. The Scottish Government’s White Paper on independence refers to a “constitutional platform” They have now published a beefed up version of this platform as a draft for an interim constitution for Scotland. You can read the whole thing here.
There has already been all kinds of comment on this draft, much of it ignoring the plainly stated description of it as both a “draft” and an “interim” constitution. The strong point of this draft is that it is primarily about securing the continuity of the existing arrangements plus whatever additional arrangements are needed to enable an independent Scotland to legislate in the currently reserved areas. Continuity is good in this context. As an interim constitution we don’t want it to contain any new measures that may be difficult to amend. For some of the more considered responses to this draft, see Aileen McHarg, Professor of Public Law at the University of Strathclyde, here, and Stephen Tierney, Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law, here.
While this draft of an interim constitution is a positive step forward, I am not too concerned about its contents, precisely because it will be an “interim” constitution. What I am interested in is the next step in our constitutional adventure – the creation of our founding constitution, the one that is meant to be more or less permanent. This is when things start to get serious. Just how will our new constitution be devised and who will be involved in writing it? The Scottish Government has consistently made it clear that it want an open and inclusive approach to this constitution making. As the draft states: This draft Bill provides for a permanent written constitution to be drawn up post-independence by a Constitutional Convention, entirely autonomous from the Scottish Government. That proposal reflects our strong belief that the process by which Scotland develops and adopts its written constitution will be as important as its content. It should be inclusive and participative, reflecting the fundamental constitutional principle that the people, rather than politicians or state institutions, are the sovereign authority in Scotland.
From the above, three principles can tentatively be established regarding our new constitution. One, it will be drawn up by a Constitution Convention, two, the process should be inclusive and participative and three, the people will be the sovereign authority. This is all well and good, but as with all principles, the devil lies in the detail. And as yet there is, rightly, little in the way of detail. This means we can still influence the ways in which the constitution is to be devised. Andrew Tickell at Lallands Peat Worrier has already very helpfully explored some of the intricacies and pitfalls of something as innocuous sounding as “the people”. His post can be found here.
If we do not want to leave the arrangements for devising our new constitution to the government and the “usual suspects”, then we need to start thinking now about how the principles outlined above are made concrete. Radical Independence groups have already begun to discuss this. My initial contribution to this debate is in the form of some key questions. Just questions at the moment, but if you don’t ask the right questions, you get the wrong answers. Not that I am suggesting these are the only questions to ask, but they will do as a starter for 10.
The Scottish Government have made it clear that the body to be charged with drawing up our constitution will be a Constitutional Convention. Are there other approaches to constitution making? If there is to be a convention, can it be supplemented by regional or local conventions?
Whatever approach is finally taken one of the key questions will be on the membership of the convention(s). Should the members be selected, nominated or elected, or a combination of all three? Crucially the key question will be, who gets to participate in this selection, nomination or election?
Once the convention(s) have been set up will they want any kind of technical/legal support to help them in their deliberations? If so, who will decide who will provide this service?
As the convention(s) start the work of deliberating and reaching conclusions, another crucial question will be, what kind of reporting and monitoring of progress do we want to see established? Is leaving everything to a convention a fully inclusive and participatory process? If we want members of the public to be involved, how can this be done?
Once the arguing and deliberating has been done and a final constitution has been agreed by the convention, what happens next? Who will have the final say on our constitution? Do we have another referendum to say Yae or Nae to the constitution?
A final series of questions relate to the timescale for the whole process. Should we set a start date for the convention to start work? Perhaps more importantly should we set a completion date for its deliberations? If not, there may be the risk that the work goes on and on and hard decisions are postponed almost indefinitely.
Lots to think about in drawing up a new constitution. But it is worth getting it right. As the introduction to the draft bill states: A written constitution is the basis of everyday life, setting out and protecting the rights and aspirations of the people of Scotland. It will be the highest and strongest of laws – a statement of the fundamental principles by which a country chooses to live, regardless of the political party in power.