We’re very pleased to have a guest post today from Jane Carnall, who describes herself thus – Edinburgh blogger, politics nerd, indecisive about independence, would like to believe these are the early days of a better nation – and you should follow her on Twitter @EyeEdinburgh if you don’t already.
“Whereas it is the sovereign right of the Scottish people to determine the form of Government best suited to our needs…”
Alastair Darling’s best argument against “Yes Scotland” was that voting for an independent Scotland is an irreversible leap into the unknown.
The best argument (in my view) for an independent Scotland is that we could stand as an example to the rest of the UK: rid ourselves of nuclear weapons (and quite possibly, just by logistics, require the rest of the UK to go nukes-free too), maintain the universal welfare state, defend the NHS, uphold the principle of free education for all: and end entirely the right-wing English argument that Scots have nicer things than them because of the Barnett formula, rather than because we keep electing left-wing governments.
But without a Scottish Constitution written and agreed-to before the referendum, this may never happen. I spent most of July’s blogging time thinking about a Scottish Constitution: and more and more I wanted this to begin now, not after the referendum.
If the Constitution is drafted in a hurry between referendum and independence day, there may be too little time for a broad spectrum of Scots to provide our views, too little time for proper oversight – and a host of wealthy power-brokers who do not want a Scottish Constitution to take any radical directions, such as nationalising the oil, abolishing the monarchy, land reform: who would, perhaps, even prefer an independent Scotland without the valuable institutions of the NHS and licence-funded national broadcaster.
The Constitution must be drafted now, when there are over two years to work on it, before we know what the result of the 2014 referendum will be. With as much input at possible from a whole range of ordinary Scots, all over the country, Highlands and Lowlands, middle-class and working-class, all faiths and none, any and all political parties and other organisations willing to come to the table with respect for the sovereignity of the Scottish people.
But how?
Supposing that the money were available (lottery win, successful grant application, wishful thinking) we could begin with a constitutional roadshow including an open space event – and a website.
The roadshow would go wherever there was a suitable venue and volunteers to answer questions: an exhibition explaining why a Scottish constitution matters, a speaker or two on the importance of the Constitution, and with at least one Open Space event at which people could answer the question “What’s important to have in the Constitution?”
The responses from each Open Space event, and the feedback for the exhibition from each venue, would be posted on the website.
Individuals and groups – trade unions, churches, third sector organisations, companies, even local political parties and MPs, MSPs, and councillors – would be invited to sign a pledge to work together towards writing a Constitution for Scotland. Their names would be published on the website.
Let’s say at a certain point, nominations for the Scottish Constitutional Commission would open. Anyone could be nominated. When nominations closed, everyone who had been nominated (or everyone with enough multiple nominations) would be contacted to ask if they were willing to take part in the SCC.
All those willing would be listed for selection. The SCC would need to be a cross-section of ordinary Scots, but also include people who had a background in Scots law, UK law, and Constitutional law: people who know politics and Parliament. How the SCC is selected isn’t as important as the process being transparent and fair. I don’t know how many would be needed, or how long the process of drafting a Constitution would take: that’s something else that would need to be decided nearer the time.
The Constitution should be drafted in time for the final stage: acceptance by the Scottish people and by the Scottish Parliament, before the 2014 referendum.
But how?
There is neither funding nor party political support for this kind of process.
For the “Better Together” parties, anything that would make undecided Scots more likely to vote “Yes” to independence would be unacceptable. And there is no ducking that point: a Scottish Constitution, giving a framework for a new nation, would certainly make some waverers feel differently about voting for independence.
For the “Yes Scotland” campaign, at present it appears the SNP at least are depending on a vision of an independent Scotland which is not too specific in details, since too detailed a vision might put people off. Further, it appears to me that many of the strongest campaigners for “Yes Scotland” are not very effective at engaging with people who don’t already agree with them.
But in any case, a campaign for a Scottish Constitution ought to be independent of either campaign, welcoming involvement whichever way you intend to vote in 2014, with input either from all the main political parties or none: either both “Yes Scotland” and “Better Together” involved in the Constitution, or neither of them.
Could non-partisan organisations and charities work on this? The Electoral Reform Society Scotland held a People’s Gathering in Edinburgh in July: Engender, the gender equality charity, has been holding semi-regular Inspiring Women meetings: on either side of the fence, the Equality Network and the Catholic Church raised awareness of the equal marriage consultation to what became almost a record-breaking level of response; at a local level, I can think of extensive examples in Edinburgh alone of people mobilising: against privatisation, to save Leith Waterworld, to discuss our vision for Leith Walk.
But everyone’s busy and nobody’s got funds to spare. Nor is this kind of open non-partisan process at all easy.
I like the idea of a Constitution for Scotland. It goes beyond any partisan feelings, any realistic political appraisal of independence and balloting. I’d like us as a nation to consider who and what we are and write our constitution.
#1 by James on August 7, 2012 - 12:18 pm
Great piece, thanks again for it, and I totally agree, except in one very positive way – you say there’s no party support for a process that involves the people in this way. There is: it’s exactly what the Scottish Greens want to see happen.
#2 by Stuart MacLennan on August 7, 2012 - 12:33 pm
Like you, I too would like to know what kind of Constitution an Independent Scotland would have before I make up my mind as to whether or not I want to vote for it.
However it is certainly not necessary to rush a new, permanent constitution. Ireland took 15 years from the formation of the Irish Free State to the enactment of the 1937 Constitution. There’s no reason why whatever primary legislation that forms the institutions of state cannot suffice for several years until we make a considered decision about the kind of constitution we wish to have.
Not that I would advocate following Ireland’s example too closely. Several drafts of the ’37 Constitution were sent to the Vatican for review!
#3 by EyeEdinburgh on August 7, 2012 - 4:24 pm
I’m not sure how a Constitution could really be democratically agreed to without a referendum. But a strongly drafted Constitution with clear broad public support would be a really good start.
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#4 by Commenter on August 7, 2012 - 1:09 pm
I don’t think this would work. The reason being that during the referendum campaign a whole swathe of the population will not want to participate in such a drafting process because it’s tied to a referendum decision that they oppose.
The result of the process would probably end up being a wish-list of whatever motivated ‘radical’ minority got involved.
For example, how does the way hydrocarbon resources are exploited (in terms of state ownership or otherwise) even get a look in, in an article about a country’s constitution? That seems like entirely the wrong thing to bake into a supposedly timeless expression of a country’s values (or whatever the hell a constitution is).
#5 by James on August 7, 2012 - 1:14 pm
Why would oil even be in a constitution? A constitution shouldn’t be about policy. I see more and more Labour folk (including oor ain Aidan Skinner) wanting to take part even though they’ll vote no, because they want to make sure that if it goes against them then Scotland has the most sensible and democratic constitution available.
The alternative is an undemocratic pig in a poke, and it won’t inspire.
#6 by Commenter on August 7, 2012 - 1:18 pm
Sounds like we agree on the oil issue.
From the article:
“a host of wealthy power-brokers who do not want a Scottish Constitution to take any radical directions, such as nationalising the oil”
#7 by James on August 7, 2012 - 1:24 pm
Whoops, I missed that line. Yes, on that at least I agree with you rather than our esteemed guest.
#8 by Commenter on August 7, 2012 - 1:22 pm
“The alternative is an undemocratic pig in a poke”
I definitely agree that independent Scotland should be democratic. I don’t think anyone is saying it should be otherwise. With a democratic Scotland, post independence, we can draw up a constitution in an actually democratic way. I think it’s a mistake for people to believe that they can make the referendum deliver independence, and also a bunch of stuff that they personally want, having drawn up their constitution in advance.
#9 by James on August 7, 2012 - 1:25 pm
I want to vote for a Scotland where I know at least roughly what kind of constitution is on offer. I don’t want to vote for Little Westminster Under The Crags. And the people need to have their say on it. Could have been one referendum, now it’d need to be two given SNP closed-minded-ness on this issue.
#10 by Commenter on August 7, 2012 - 1:32 pm
I’m genuinely puzzled because any constitution, post-independence, will be decided on democratically by Scots in a situation where all will want to participate regardless of their decision in the referendum. However you insist on a constitution being decided on by Scots in the current partisan situation, before voting for a constitutional arrangement (independence) where Scotland can have its constitution drawn up democratically by Scots.
And if you don’t get that then it sounds like you would prefer to live in the UK under the UK’s fabled unwritten constitition.
#11 by EyeEdinburgh on August 7, 2012 - 4:09 pm
I’ve suggested a means by which Scotland can have a constitution drawn up democratically by Scots prior to the referendum, by all who wish to participate.
Thus far, anecdata says that it’s those who intend to vote “Yes Scotland” who are more likely to refuse to participate, which would be sad.
#12 by Alec on August 7, 2012 - 1:40 pm
Agreed with the above. There are of a disregard for the majority of the population who – on current polls at least – are not amenable to a Yes Vote to tell them that they should enter into this discussion lest they want no doubt to be accuse of “negativity”.
Darling has offered other arguments. From this, he could offer another… that it’s like planning how to spend next week’s lottery win.
~alec
#13 by EyeEdinburgh on August 7, 2012 - 4:07 pm
I agree that a problem with discussion about a Constitution that includes both definite “Better Together” and “Yes Scotland” voters would be political infighting.
Which is why I think that if enough people agree it would be good to have a written Constitution, whether or not we are independent, it would be important to have the process detached from either campaign – to seek to draft the best possible constitution, prior to the 2014 result.
#14 by EyeEdinburgh on August 7, 2012 - 4:03 pm
The reason being that during the referendum campaign a whole swathe of the population will not want to participate in such a drafting process because it’s tied to a referendum decision that they oppose.
Actually, in my experience (this is anecdata only) it’s the people who intend to vote “Yes” in 2014 who are most set against the idea of drafting a Constitution before indyref. With exceptions, obviously.
Those who are undecided tend to be the most interested, but the idea generally has a more positive reception even among those who say they intend to vote “No” than among “Yes” voters.
So as I see it, the problem is how do we get the people who intend to vote “Yes” on board with drafting a Scottish Constitution before indyref?
Do you have ideas?
For example, how does the way hydrocarbon resources are exploited (in terms of state ownership or otherwise) even get a look in, in an article about a country’s constitution?
Glad you asked! I blogged about this in more detail three weeks ago: Our constitution, July 2012: Oil reserve
#15 by Niall on August 7, 2012 - 1:11 pm
Regardless if the outcome of the referendum, I feel that the Scottish Parliement should implement a constitution. Enshrining rights and responsibilities of the people of Scotland. If we are still part of the Union so be it. They surely couldn’t stand on the way of a bill that enshrines Democracy Max. After all, isn’t that what it is working towards as well? (and not about preserving the rights and properties of a rich elite)
#16 by EyeEdinburgh on August 7, 2012 - 4:09 pm
I agree.
#17 by Iain Menzies on August 7, 2012 - 1:34 pm
The US constitution was produced inside of 6 months….why do we need one 2-4 years before scotland could be an independent nation?
Even if scotland is to be independent, do we even need a constitution?
#18 by EyeEdinburgh on August 7, 2012 - 4:15 pm
UK Constitutional experts Joshua Rozenberg and Vernon Bogdanor argue that the UK already has a Constitution – all over the place in various documents which are subordinate to a majority vote in Parliament / Crown powers. I disagree, but it’s an argument.
If a Constitution is to be drafted, it would have to allow for the possibility that some clauses would have to “not apply” in devolved Scotland.
I doubt if the SCC would take so long to write the constitution, but if – as I hope – it were to be a process with public input, it would certainly take a year or more to collect that input. The last Constitutional Convention took six years to produce the blueprint for the Scottish Parliament.
#19 by Iain Menzies on August 7, 2012 - 6:37 pm
Ok that second question was badly worded.
And its not an argument as to wheter the Uk has a constitution, it does. Every nation, club and organisation has one, no matter if there is a single document titled constitution or not.
That the vast majority of scots have and do live in a country without a written constitution, barring thsoe who are expats from here or else where, and that have lived rather well under the current set up, surely we need to ask if we need to set one down on paper (or pdf).
Indeed why would public input be something that was ever desirable? Confirmation by yes, but active involvement in the drafting, why? where is the governance of the country advanced by every group with a pet project sticking in their oar in?
#20 by EyeEdinburgh on August 7, 2012 - 7:01 pm
Indeed why would public input be something that was ever desirable?
Depends what kind of democracy you want to live in, I suppose.
where is the governance of the country advanced by every group with a pet project sticking in their oar in?
In Scotland. That’s how we got devolution.
#21 by Doug Daniel on August 7, 2012 - 2:54 pm
I like the idea of writing the constitution before the referendum, for a couple of reasons. Firstly, it’s clear that there are people who are open to the idea of independence but not yet a convert, and this may be something that could get those people to finally come on board. The more people are talking about what an independent Scotland could or should look like, the more likely they are to end up voting for it. Secondly, it just makes it feel all the more real, and makes voting “no” seem increasingly bizarre.
But I’m just not sure how realistic is it that it can really work. A large section of society currently can’t even bring themselves to use the word “independence” for fear of making it sound like too positive an idea, so there’s simply no way such people will be grown up enough to take part in the drafting of such a constitution. Now, we can simply say “fine, it’s your choice”, but it’s not really fine, is it? It hardly bodes well for the type of democracy we want in Scotland if we start off by alienating those who don’t want independence, and goes a long way towards feeding the various fears and complexes of people who think they’re going to be rounded up and shipped out of the country as “traitors” if they vote “no” but the country votes “yes”.
On top of that, I’d be interested to know how much of the population would really think this is a big issue, because I feel a lot of those who say independence is “uncertain” are just parroting the crap they’ve heard/read in the news. For politicos, it’s certainly something to have a good healthy rammy over, but is it something the average bod on the street is really bothered with? Although that’s certainly no reason not to do it, since they can ignore the whole thing if they wish, and perhaps the ensuing debates would get people interested. But I can’t help feeling a lot of these topics are things most people barely realise are even “things”, never mind understanding how they affect them and how they could or would be different. “Judicial review of constitutionality of laws”, for example, sounds like a module in a law degree. I also can’t help thinking many of these issues are deserving of their own debates, rather than wrapping up into a catch-all constitutional debate. Local government jumps out at me as one such issue.
But I feel like I’m being too cautious here, and debate rarely leads to a negative result.
#22 by EyeEdinburgh on August 7, 2012 - 4:22 pm
As noted above – anecdata says that it tends to be the “Yes Scotland” voters who are more negative about the idea of drafting a Scottish Constitution before indyref.
That may seem counter-intuitive, but I think it’s because people who already know they intend to vote yes, see independence as the first and foremost goal, and aren’t too bothered (or are blissfully certain without thinking about it too hard) what an independent Scotland would be like. They’re not going to care very much about political energy going to a Constitutional Convention unless it definitely furthers the cause of independence.
Which, in all honesty, it cannot be guaranteed to do. I think a Scottish Constitution, drawn up and generally agreed to, would make some undecided voters more likely to vote Yes. But as a Constitution would have to work both in a devolved and an independent form, and the Convention would have to include people both from “Better Together” and “Yes Scotland” with an equal voice, some undecided people may even waver the other way.
But I can’t help feeling a lot of these topics are things most people barely realise are even “things”, never mind understanding how they affect them and how they could or would be different. “Judicial review of constitutionality of laws”, for example, sounds like a module in a law degree
I agree. It’s why I wrote the blog posts attached to those titles -I wanted to get an idea myself of the human values behind the constitutional language.
#23 by Scotsfox on August 7, 2012 - 5:05 pm
What does “drawn up and generally agreed to” actually mean? How do you get general agreement? Who is agreeing? The Parties? The People in a pre-Referendum referendum?
#24 by James on August 7, 2012 - 5:41 pm
Think of the devolution approach. A model was discussed by the people, including individuals, civic Scotland and some of the parties. What they proposed was then what was put to the people in a referendum. The devolved powers aren’t enough, but it’s an excellent approach for buy-in and worked well last time.
#25 by Scotsfox on August 7, 2012 - 6:00 pm
Agreed on how to put a constitution together, and I think we should get on with it but I don’t think the Indy Ref is the place for agreement. A Constitution is not a Yes/No question and I think we need to shape it after Indy based on a lot of work between now and then. We now have the advantage of a much more mature online environment for debate than we did back then and I like the Icelandic Crowd Sourcing idea.
#26 by James on August 7, 2012 - 6:33 pm
I’m sorry, that’s not good enough for me. Currently SNP types say they already know what the constitution is – it’s McCormick’s dreadful work. I don’t want to live in that sort of Scotland, and I don’t want that to be our constitution. It matters what kind of Scotland people are voting for, and right now there’s not even a pledge that the people will have a say on a draft constitution, let alone be invited to take part.
#27 by Scotsfox on August 7, 2012 - 6:39 pm
Is it up to the SNP to invite people to contribute? I think the work should begin immediately but I don’t see how it can be ratified before Independence. I’m not suggesting we do nothing before Indy just that any decision to adopt must come after Indy.
#28 by James on August 7, 2012 - 6:41 pm
If a process isn’t endorsed by the SNP it won’t reassure people about its likelihood to happen, given their bizarre support for that McCormick document. It will either need to be drawn up over the next two years (hardly arduous) or it’ll need another referendum if the first one succeeds (which is more likely if people know what they’re buying into, and have been involved).
#29 by EyeEdinburgh on August 7, 2012 - 6:57 pm
My feeling is that if it can be shown there’s a broadbased public committment to a Scottish Constitution very different from the McCormick document, the SNP will come round.
If there is. Remains to be seen….
#30 by EyeEdinburgh on August 7, 2012 - 6:04 pm
I think part of the issue for many SNP activists is that the SNP were not part of the first Scottish Constitutional Convention and so have no political background about how it worked.
#31 by Scotsfox on August 7, 2012 - 6:39 pm
Well they may not have been part of it but I’m sure they’re well aware of the process.
#32 by Doug Daniel on August 8, 2012 - 4:50 pm
I suppose one reason why unequivocally pro-indy supporters are against writing it beforehand might be a fear that it ends up turning some people off. For example, one of the issues is the head of state. In the long term, I want a ceremonial president as the head of state; but I don’t want people voting against independence because they want to keep the Queen. At the same time, I don’t want to go putting it down in a constitution that the Queen is the head of state, because it’ll make it seem so much more permanent than if we just say “she’s head of state until we decide otherwise”.
The more I think about it though, the more in favour I am. Ian Davidson’s hideous performance on Newsnicht last night was a good reminder that what we’re dealing with here. An ancient, creaking institution, versus a vision of a new future. I’d like to think any “soft” royalists would not pass up the opportunity just because they like the Queen. Similarly, perhaps many “soft” republicans would be happy enough to see the Queen retained, if it was stated clearly in the constitution that she has absolutely no actual power?
And, rather than debating about a debate, maybe we should just get on with having it.
#33 by Scotsfox on August 7, 2012 - 5:02 pm
I agree that we should get started on this but a Constitution can only be ratified AFTER the 1st Scottish General Election. I agree that it will make things seem more “real” for some but will not be a priority for most. When I say “get started” I think there have been concerted efforts in the past that can be picked up.
#34 by EyeEdinburgh on August 7, 2012 - 6:05 pm
A Constitution can be ratified by the Scottish Parliament regardless of which way the vote goes in 2014.
#35 by Scotsfox on August 7, 2012 - 6:41 pm
How can we ratify a Scottish Constitution while still in the United Kingdom?
#36 by James on August 7, 2012 - 6:58 pm
In a word, provisionally.
#37 by Scotsfox on August 7, 2012 - 7:05 pm
Fair enough.
#38 by Indy on August 8, 2012 - 9:07 am
No it couldn’t be. Well, you could conceivably put everything that was devolved into a form of written constitution but what would that actually contain?
#39 by Iain Menzies on August 7, 2012 - 6:41 pm
So what would the constitutional arrangments be for that first general election?
#40 by James on August 7, 2012 - 6:57 pm
Exactly. We can say “oh, just the same as now” if we like, but the fact is that 129 MSPs (or MPs as they would presumably become) would suddenly have a roughly 50% bigger workload. Not good enough just to add some powers to Holyrood and assume it’s all just going to be OK.
#41 by EyeEdinburgh on August 7, 2012 - 7:15 pm
Yes. Also, in the current model for independence, the First Minister levels up to Prime Minister and acquires the Crown powers for Scotland, which is not quite the same as at present, and we have known problems with a democratic deficit in Scotland even without doubling the workload of 129 MSPs.
#42 by Tom Cresswell on August 7, 2012 - 5:28 pm
A lot of this is quite interesting. One thing I would suggest is that there is a charitable group that have started doing this, called the Constitutional Commission, and have already made a draft constitution, which would work very well as a fantastic starting point.
A book has been written by Eliot Bulmer, which has a lot of explaination of the different options available and the thought process that was used to decide what would go in the Model Constitution. I would definitely recomend getting a copy if you are interested in a potential constitution (either for Scotland or the UK).
http://www.amazon.co.uk/Model-Constitution-Scotland-Making-Democracy/dp/190837313X
There is a website which has a lot of interesting information (including a copy of the Model Constituion), which is definitely worth reading.
http://www.constitutionalcommission.org/production/byre/images/assets/file/Resources%20Folder/A%20MODEL%20CONSTITUTION%20FOR%20SCOTLAND.pdf
Just want to throw this out there as I genuinely enjoyed the book so much… as someone who was relatively indifferent to the idea of independence or either of the campaigns, reading this actually made me interested in the debate and the potential it may bring.
#43 by Iain Menzies on August 7, 2012 - 6:52 pm
Im sorry i just looked at that model constitution and its nuts.
I havent looked at it all in fact i havent finished article 3 yet.
but this did jump out at me.
Article 3, section 14 d and e.
D, provides immunity from arrest for any member of parliament during a parliamentary session. That is frankly a crazy idea. Why is it crazy? In two words, Eric Joyce.
E, provideds for a ‘moderate’ salary for MP’s. Wht does moderate mean and why is it even used, why does this document not just provide for a salary?
So this might be a starting point, but it needs a helluva fisking.
#44 by EyeEdinburgh on August 7, 2012 - 7:06 pm
“In all seriousness: this should be discussed in detail. This is one instance where the Scottish constitution could not have binding force until independence: but where a serious and detailed consideration of Parliamentary privilege by people who are not MPs or MSPs would have public value.” Me, on Parliamentary Privileges, 3rd July.
So, yeah, I agree.
#45 by EyeEdinburgh on August 7, 2012 - 6:54 pm
I’m aware of the Constitutional Commission – I attended an evening event at Parliament that they organised in June.
My impression from their Facebook group is that they are decidedly unwelcoming to anyone who isn’t already committed to “Yes Scotland” – the involvement of the large and wavering group of “Scots Undecided”, let alone those who are definitely going to vote “Better Together” did seem to be a bit beyond their compass. Though Facebook groups need not be indicative of the organisation itself.
But I was very impressed by the rigour of Eliot Bulmer’s work on what a Constitution should include, and based my series of posts in July on my own blog on the structure taken from his book.
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#46 by Alasdair Frew-Bell on August 7, 2012 - 8:31 pm
Many modern states have constitutions but these man-made and often semi-religiously venerated documents are no more guarantees of civic freedoms and “rights” than the legal codes from which they all more or less spring. Without a judiciary that is free from political interference constitutions are worthless. Totalitarian states have constitutions guaranteeing freedoms of speech or worship for example but these may be suspended indefinitely should the regime consider it expedient. Even in soi-disant democracies you never know the minute when deputies and legislators might become over exercised with popular/populist power. Anyway they are somewhat antiquated as a phenomenon being a product of 18th century idealised Enlightenment notions of human behaviour. The US constitution has stuff about the right to bear arms, with consequences in our times that the originators could not have foreseen. Also the recent business about samesex marriage, for some a basic freedom for others not so gets us into the realm of enshrining inviolable “rights” . A minefield at the best of times let alone during the process of the rebirth of an ancient nation. Think at the moment we independentists have bigger fish to fry.
#47 by EyeEdinburgh on August 7, 2012 - 10:40 pm
Without a judiciary that is free from political interference constitutions are worthless.
Agree. See: Judicial independence and Judicial review of constitutionality of laws.
The US constitution has stuff about the right to bear arms, with consequences in our times that the originators could not have foreseen.
Not to get into an argument about this, but I think it is clear that the US Constitution’s second amendment initially meant that all could bear arms in a duly-constituted militia. The NRA appear to have had a considerable amount to do with the modern interpretation of “no gun control laws”. That the US Constitution allows horrendous amounts of influence by wealth is too horrifyingly true. All of these things should be considered when drafting a Constitution.
A minefield at the best of times let alone during the process of the rebirth of an ancient nation. Think at the moment we independentists have bigger fish to fry.
It does seem still fairly consistent that, counter-intuitively, it’s the “No”/”Undecided” voters who are enthused about a Constitution.
#48 by Alasdair Frew-Bell on August 7, 2012 - 11:24 pm
There is also the rather pressing matter of the reform/modernising of the antiquated structure of Scots Law. Is it fit for purpose, to be the legal system of a modern state?
#49 by Daveinmaryburgh on August 7, 2012 - 9:21 pm
I have to admit that ideally I would like to see the foundation of a constitution in place in the run up to the referendum. Discussions at Yes stalls with undecided and some who are anti SNP have opened up when discussing how this is an opportunity to debate Scotland’s future with majority wanting a change. There is genuine interest when discussing what has happened with Iceland and possibilities this could open up.
However, there’s always a however, I can’t see how it could be a success without involvement of No camp or why they would want to be included. Although as the campaign progresses and more become involved could that be what feeds into the constitution and a convention may come about by pressure from general public rather than any particular org.
#50 by EyeEdinburgh on August 7, 2012 - 10:42 pm
Discussions at Yes stalls with undecided and some who are anti SNP have opened up when discussing how this is an opportunity to debate Scotland’s future with majority wanting a change. There is genuine interest when discussing what has happened with Iceland and possibilities this could open up.
Great!
At the moment (see above) anecdata says that the group most set against the idea of moving towards a Scottish Constitution before the indyref are, paradoxically enough, “Yes” voters.
#51 by Daveinmaryburgh on August 8, 2012 - 6:01 pm
Would writing the constitution prior to referendum mean that we would be voting for or against this constitution rather than independence.
All of the confirmed Yes supporters I’ve spoken to want a debate, if this is part of it then fine however how would the no camp become involved, would they? Do we just plough ahead without them and after the result say tough this is what’s going to happen, you had your chance prior to ref.
What level of detail is required, I was wondering, after last nights Newsnight Scotland, how much detail was agreed and in place prior to the referendum in 1997 and how much came after the result..
#52 by EyeEdinburgh on August 8, 2012 - 8:13 pm
I was wondering, after last nights Newsnight Scotland, how much detail was agreed and in place prior to the referendum in 1997 and how much came after the result.
You don’t need to wonder: you can read Scotland’s Parliament, Scotland’s Right, written by the first Constitutional Convention, published 30 November 1995.
#53 by EyeEdinburgh on August 8, 2012 - 8:28 pm
Would writing the constitution prior to referendum mean that we would be voting for or against this constitution rather than independence.
Whether or not I would vote for independence is likely to be strongly dependent on (a) whether there is a Constitution for Scotland drafted at all (if not, almost certainly voting No) and (b) If I like the Constitution drafted. (You know, in theory, a Constitution for Scotland could leave us worse off. Just saying.)
All of the undecided and most of the No supporters I’ve spoken to want a second Constitutional Convention. All of the doubts strongly expressed about having one at all before indyref have come from the Yes supporters. So my question is really: How do we get the Yes supporters on board with the idea that the Constitution will have to be fit for a devolved as well as an independent Scotland? This was the sticking point for the SNP last time. If the Yes supporters decide they won’t be part of a Constitutional Convention if it means they have to respect and engage with the views of those who support devolution, well, I think we’re probably screwed.
Devolution could come without the support of the SNP (and did).
I was wondering, after last nights Newsnight Scotland, how much detail was agreed and in place prior to the referendum in 1997 and how much came after the result..
You don’t need to wonder! The blueprint for devolution was worked out in considerable detail by the first Constitutional Convention, published 30th November 1995, and is available online: Scotland’s Parliament, Scotland’s Right.
#54 by James on August 9, 2012 - 8:33 am
Even down to the number of MSPs if I remember rightly.
#55 by Iain Menzies on August 7, 2012 - 10:12 pm
Let us assume that we (whoever we are) draw up a constitution.
It finds ‘general support’ (whatever that is) with the scottish people.
The Scottish Parliament approves it before the referendum.
To my mind one of two things will result from this.
Either the document will be produced in broad generalisations which will depend on interpretation.
Or it will be horrifically detailed, which probably means in part at least contradictory.
In either situation the question isn’t what is in the document so much as who decides what it means.
The UK has no real experience of a Constitutional Court.
So what would such a court look like?
#56 by EyeEdinburgh on August 7, 2012 - 10:53 pm
I think our closest experience with a Constitutional Court is the European Court of Human Rights, which operates from the Convention for the Protection of Human Rights and Fundamental Freedoms which is based on the Universal Declaration of Human Rights.
#57 by Iain Menzies on August 7, 2012 - 11:11 pm
closest yeah i would agree with that.
however its judgements are non binding.
And its European (and yes i know its not part of the EU) and as often as not we dont like what it does.
I would argue that the ECHR produces a democratic defecit and is that something that we want to build into a Scottish state?
#58 by EyeEdinburgh on August 8, 2012 - 8:00 am
Well, I guess it depends who “we” are. I like what the ECHR does: protects minority rights against majority rule. And that is part of the function of an independent judiciary in a functioning democracy.
I agree that there is a democratic deficit in Scotland, but disagree with you where the cause lies.
#59 by Indy on August 8, 2012 - 9:00 am
I don’t think there is any reason why people who have a particular interest in a post-independence constitution shouldn’t start work on it now – and there is a constitutional commission already in existence I believe.
But you will not get a buy-in from any of the anti-independence parties, that’s just a fact. Individuals may participate but the parties won’t.
So you couldn’t put a pre-drafted constitution to parliament or the people after independence – and it would have to be agreed by both the parliament and the people. If an attempt was made to say here is one we made earlier the Labour/Lib Dem/Tory camp would say that is unacceptable. It’s undemocratic. And they would have a point really because it does require a buy-in from everyone, not just a self-selecting group.
As I said, that does not mean that work can’t begin now and it certainly would provide an opportunity to shape a post-independence constitution. (The reference to having a written constitution whether or not we are independent is confusing, the constitution is very much reserved). But you can’t say this is it – this is what will happen in an independent Scotland. Because who are you speaking for? Where does your authority to do that come from?
#60 by James on August 8, 2012 - 10:19 am
I’m afraid this reads like just another of those bits of baffling but superficially appealing logic that are apparently designed to make it all go away. Bottom line: we’ll lose the vote if people don’t have any idea what they’re voting for (and there are a couple of hundred different examples around the world of what independence means). Run your arguments through the devolution process and try again.
#61 by Indy on August 8, 2012 - 11:22 am
If you don’t get a buy-in from political parties plus the range of organisations such as STUC, SCVO, FSB, SCDI, churches etc then it won’t really progress. Folks discussing it on the internet are not the same. There is already a body trying to pull some of this stuff together, the Constitutional Commission. Why not get on board with that or do you want multiple bodies drawing up constitutions for an independent Scotland before we are actually independent? Getting in Judean Peoples Front territory a bit there, no?
#62 by EyeEdinburgh on August 8, 2012 - 11:37 am
If you don’t get a buy-in from political parties plus the range of organisations such as STUC, SCVO, FSB, SCDI, churches etc then it won’t really progress.
Agree. Do you have ideas about how we could get this to happen?
#63 by Indy on August 8, 2012 - 11:47 am
Write to them? Also to the exisiting Constitutional Commission. If you could get interest from these bodies may persuade more politcal bods on board.
There is a lot of stuff going on now with SCVO led groups looking at options – also in the trade union movement. Unison, Unite etc. all under banner of STUC. This is all going on under the political radar but it’s still going on.
It’s not directly about a written constitution but is about the kind of Scotland their members want to see so there is an obvious tie-in there I would have thought.
#64 by EyeEdinburgh on August 8, 2012 - 12:17 pm
I started a FB page hoping to find out what interest there might be in moving towards a Scottish Constitution. (12 “Likes” so far. *hope*.)
I agree that a letter-writing campaign for the various groups to get them on board is a next step.
At the moment, I honestly don’t know if the idea of a Scottish Constitution has any broad appeal outside of the kind of politics nerds I tend to hang with.
#65 by EyeEdinburgh on August 8, 2012 - 11:35 am
I find it strange yet consistent: while people who are undecided or may vote no may express an interest in the Constitution, still people who definitely intend to vote yes often express their view against it… on the grounds that the “no” groups won’t want to be involved.
I see no reason why people from both camps wouldn’t get on board, providing there was a general agreement to bring goodwill to the table.
(The reference to having a written constitution whether or not we are independent is confusing, the constitution is very much reserved)
Aspects of a Scottish Constitution deal with reserved areas. Other aspects deal with devolved areas. The principle behind a Scottish constitution, to say who and what we are, is certainly not something that needs to wait on independence.
#66 by Indy on August 8, 2012 - 12:37 pm
It isn’t that people are against the idea, it’s just that it doesn’t seem possible. That’s no reason not to try it though. Probably we have just been in the trenches for too long to see over them.
The Scottish Parliament as it is currently constituted couldn’t “accept” a constitution in the sense of giving it any legitimacy. But I agree people don’t have to wait to start discussing or pulling ideas together.
Maybe it would be an idea to get a cross-party group going? That could be a starting point in parliamentary terms.
#67 by EyeEdinburgh on August 8, 2012 - 3:07 pm
The Scottish Parliament as it is currently constituted couldn’t “accept” a constitution in the sense of giving it any legitimacy.
“Constitutional matters” are reserved to Westminster. But getting the public involved with broad support is how we got our Scottish Parliament in the first place.
Technically, the Scottish Parliament can’t legislate for the independence referendum without legislative support from Westminster. But this is happening anyway, because the indyref has a clear democratic mandate.
There’s no reason why, if a Scottish Constitution is drafted and had clear public support in Scotland and a democratic mandate (for example, if all of the parties with MSPs accepted it as a framework for Scotland) a similar Westminister/SP5 arrangement couldn’t be made.
A Scottish Constitution would then have practical impact whether or not the independence referendum goes “YesScot” or “BetterTogether”.
It isn’t that people are against the idea, it’s just that it doesn’t seem possible. That’s no reason not to try it though. Probably we have just been in the trenches for too long to see over them.
Possibly! Historically the SNP never got involved with the first Constitutional Convention, because it was moving towards devolution rather than independence, so the SNP activists of the time have no practical experience in how that worked.
I think there’s also a presumption – I have noticed it on the CC FB page too – that first of all you have to win the fight for independence, and only then can you move on to other things.
But I’m not interested in “having a fight” over independence. I’ll decide how to vote in my own way and my own time. I am, however, interested in a Scottish Constitution, and am very much prepared to work towards that.
#68 by Indy on August 8, 2012 - 11:56 pm
I just don’t see how that could work. In some senses the Scottish Parliament already has a written constitution. The Scotland Act. That defines what the Scottish Government can and cannot do. You could I suppose add in the rights of the citizen to those areas and come up with some kind of constitiutional document.
But you know the Scottish Parliament itself cannot amend or change the Scotland Act. That can only be done by Westminster – and Westminster also has sovereignty in devolved areas. So I dunno, how could any constitution drawn up by the Scottish Parliament, even on the basis that it was limited only to areas where the Scottish Parliament has competence, actually have any force? To be meaningful a constitution surely has to have legal force? And it wouldn’t – and won’t until the Scottish Parliament has the power to give it that standing.