The question of an independent Scotland’s constitution is being finally discussed by the SNP – as opposed merely to the “constitutional question”, i.e. simply whether we should choose independence. The First Minister, in a speech yesterday, even noted that “since no single party or individual has a monopoly on good ideas; all parties, and all individuals, will be encouraged to contribute“. This is major progress on the previous position, which was that the dire constitution written by the late Professor McCormick for the SNP would be what we’d use.
A better constitution is one of the key reasons for independence, for me. Westminster’s uncodified structures lack many key protections for individuals, they’re opaque and impossible for anyone outside Parliament itself to modify, and they say nothing about any aspirations or values that ideally should be associated with the British state. And the nature of that Scottish constitution is vital. It’s not enough merely to be an independent state: it’s time to be a better state as well as a better nation. Crucially, as the First Minister accepts, such a constitution “should enshrine the people’s sovereignty“, not Parliament’s.
Although this is a very welcome shift, there are still two key problems with it.
First, some of the content he proposes is policy. This is a category mistake: constitutions should be the rules for governing a state and protections for individuals and groups against majoritarianism. Like Salmond, I am against illegal wars, nuclear weapons, homelessness, and access to education being based on means rather than ability. But those are policy positions that should be determined by the voters in post-indy general elections, not enshrined into a constitution as sacrosanct. The Tories (and presumably Labour and the Lib Dems, if the latter still exist by then) will go into any 2016 election for an independent Scottish parliament backing the retention of Trident. I think they’re wrong, but if a majority of Scots agree with them, the weapons should stay. We can’t write a document that makes a legitimate position like that unconstitutional. I note here that Green policy also supports this position on nukes, incidentally, in case anyone thinks I always just parrot the party line.
Second, the timing. The Scottish public still won’t know anything about that constitution before they vote in October 2014. Will they genuinely be sovereign in that new Scotland? It’s not clear. And it doesn’t need to be like that. Two years before the 1997 referendum, the Scottish Constitutional Convention had, through a pretty open process, agreed what a devolved Holyrood would look like. The contents of the poke were clear. Over the next 21 months the entire Yes campaign could be transformed by a similar process. Meetings around the country, debates about vision and democracy and values, not just endless sniping about the economic costs and benefits of the process (which are broadly unknowable anyway).
The alternative to such a process is not only unreliable and uninspiring, it’s also deeply problematic. On what basis would the institutions of an independent Scotland operate during the long hiatus between a putative Yes vote and the ratification of a proper constitution? What bad habits might become ingrained? Do we really want a second referendum once it’s written rather than one clear vote on a particular model of independence? (there are advantages to a second process, I accept, not least that a menu of options could be more easily offered, Icelandic-style)
Still, without wishing to sound like the curate above, this speech remains substantial progress. The actual constitution is on the table, and there’s still time for the Yes campaign to take the next essential step. Put the people in charge, and then let the people decide.
#1 by Doug Daniel on January 17, 2013 - 2:31 pm
While I’m sympathetic to both your points, I think you’re forgetting about the elephant in the room which turns them into an infinite feedback loop (the phrase I’m looking for escapes me).
Unionists will not take part in any discussions about a constitution for an independent Scotland. It’s hard enough getting some of them to even say the word “independence”, never mind getting them to participate in a process that gives the slightest credibility to the idea itself. At the moment, the only people who would take part in the process of creating a constitution are people who coincidentally also want to rid Scotland of nuclear weapons, so how do we ensure the voice of opposition is heard, apart from relying on people such as yourself to take a step back and say “hey come on guys, what about the pro-nukes lot, who aren’t here but will feel left out once they’ve stopped sulking?”
Everyone needs to be involved, but they’ve made that impossible until after the referendum. So how do we square that circle, other than waiting until we’ve removed the one condition that is stopping a significant part of the population from being involved?
(Of course, there’s a part of me that says “those who don’t want independence have no right to dictate how it should pan out – if they want a say, they should vote yes”, but that’s the part of me I try to keep quiet while I’m typing on the internet.)
Besides that, I actually think it would be better to have it done under the conditions of a fresh parliament, rather than one where the parliamentary arithmetic has been largely dependent on factors which I expect to dissipate after the referendum. Even as an SNP member and voter, I would rather this was done when the SNP don’t have a majority in Holyrood – if only to quash any talk of “pushing through SNP policy” and the likes which we’re already seeing from folk.
In an ideal world, I would agree with you. But after reading Salmond’s speech, I reckon this is the most practical way of doing it – transfer the powers to Holyrood, take things as they stand as our starting point, and then work from there. It’s not perfect, but I don’t think the alternatives are any better.
#2 by Iain Menzies on January 17, 2013 - 3:13 pm
“(Of course, there’s a part of me that says “those who don’t want independence have no right to dictate how it should pan out – if they want a say, they should vote yes”, but that’s the part of me I try to keep quiet while I’m typing on the internet.)”
So should we do away with the secret ballot for the referendum and if its a yes vote just bar anyone who voted NO from ever voting for anything in scotland again?
#3 by Doug Daniel on January 18, 2013 - 11:13 am
Cheers Iain, I had a little bet with myself that someone would ignore the overall content of my comment and just focus on that one bit. Nice to see I was right!
#4 by Iain Menzies on January 18, 2013 - 12:28 pm
Your welcome Doug, I thought that the shockingly undemocratic nature of that part deserved special attention.
You might notice that there is something more of a response to what you (and James) say in the comment posted by me at 3.11.
#5 by Iain Menzies on January 17, 2013 - 3:11 pm
If the SNP/the Greens/Yes Scotland want the unionist majority (for it is) to take part in this then they need to make that majority a minority.
Cos if they dont the only reason that anyone who doesnt support independence would have for taking part would be to till time when they have nothing better to do.
I dont actually think your second point needs to be an issue. and it shouldnt have been. But Salmond has made it one by providing you with your first point.
As I understand it (and its been a LONG time sincei looked at US history) the Americans got their constitution in two stages. The bare bones of how the country works….and then the Bill of Rights.
There is no reason why we couldnt have a consitution that was esentially the Scotland Act, less the reserved matters and a couple of sections establishing department for international affairs, defence and welfare etc. Then after the teoretically possible yes vote you draft the bill of rights committing a Scottish Government to paying for you to go to uni till your 90.
#6 by AFaulds on January 17, 2013 - 6:31 pm
So… What happens if a majority of Scots WANT a constitutional ban on nuclear weapons? Pretty much anything could be argued as “policy”, eventually leaving us with a constitution that would basically say “This is Scotland. We have a parliament, which can do these things. End of.” That’s, excuse the vernacular, pish.
If we’re, before even starting the process, eliminating things as unsuitable, where’s the room for aspiration?
A constitution, as you rightly point out, is not just a document laying out how the state is run, but a declaration of the aspirations and values of the people. I think a statement of opposition to the atrocity of nuclear weapons and a belief in a nuke free world is suitably aspirational and says a lot about our values. If ever there is a majority in favour, well, there’s always constitutional amendments.
The problem with policy is that once elected, there’s no guarantee that the government will follow it. Of course, a government that abandons all it’s policies isn’t likely to be re-elected, but if elected on a promise of not getting involved in foreign wars then they go back on that and go off invading half the world with the US, kicking them out of government a few years down the line is hardly going to change the fact we went to war, is it?
Of course, there are things that shouldn’t be in a constitution, but things as important as war and nukes should have more regulation on them than the fleeting fancy of governments.
But then, if I was in charge, I’d regulate ALL THE THINGS…
#7 by Iain Menzies on January 17, 2013 - 6:52 pm
Values change.
I dont buy that Scots have that much of a problem with Nukes, not least because we have never really gotten behind a party or group that is out and out for getting rid of them, and (in the case of a party) is in a position to do anything about it.
But say you do get a nuke free zone in a constitution. What happens if a majority of scots decide they want to vote for a party that has as policy the development and deployment of nuclear weapons? Do you just say oh no the constitution doesnt allow that? Or do you undermine the constitution by changing it?
How is it changed? Just by parliament? or by referendum?
if by referendum then how exactly? simple majority or some minimum turnout requirment?
A constitution should put in place, and as far as possible secure, the institutions that ensure a free and democratic society. You start putting policy in it, policy that doesnt support a free democratic society, and you undermine such a society.
#8 by AFaulds on January 17, 2013 - 10:04 pm
Apologies in advance for the ridiculously long response!
Actually, I’m not sure why I suggested we could amend the constitution to allow ourselves to become nuclear armed, as we’d run up against this little thing; http://en.wikipedia.org/wiki/Nuclear_Non-Proliferation_Treaty. If we were ever to (lose our minds and) decide to do so, I’m pretty sure the rest of the world might have some (very firm) things to say about it. I’m about to make one of those dreaded assertion things, but I don’t ever see us voting to become nuclear armed if we are independent. It’s one thing to be ambivalent towards hosting the UK’s nuclear weapons – it’s another entirely to decide “hey, why don’t we develop our own atrocious weapons of mass destruction?”
However, apart from that, I do agree that values change. That’s why the constitution should have some form of amendment process. I don’t think amending the constitution undermines it – not wanting to remove anything that was in the original document leads us to situations like the USA’s Second Amendment. I believe that any amendments should be put out to referendum – whether or not there should be some turnout requirement or not I’m not sure, I’d have to decide in the run up to any (hopefully we’d have one) election for a constitutional assembly. Ideally, we’d also have some process for citizen-triggered amendments – y’know, collect X signatures for your petition and parliament must debate a potential amendment, collect Y (where Y is a big number indeed) and they actually have to draft one and put it before the electorate.
Which brings me to why I don’t think adding “policy” into it is a problem – if we do, as I hope, elect a constitutional assembly (preferrably with both political and ‘citizen’ representatives), we are excercising our rights as a free and democratic society. If our free and democractic society decides, through the candidates we vote for, to have this or that in the constitution, why should it not be in there?
So long as we have the proper balance in the amendments process, it should be sufficiently difficult to change the constitution that it’s not done on a frivalous basis or to infringe on the human rights of a group (say LGBT people or Muslims) without it being too difficult to change it to suit an evolving Scotland. A balance that will be very, very hard to get right, I admit.
I’ve been having a look around for interesting policies in the constitutions of other (democratic) countries, here’s a few gems (from the constitutions that were most easily read, because I’m not hauling through a big ol’ PDF with no contents page!);
The Estonian Constitution states that (Chapter 2, Article 38) “Science and art and their instruction are free”, which I think is pretty cool, and in Article 53 here’s one that’ll go down well with the Greenies (though I’m sure many modern constitutions have similiar provisions) “Everyone has a duty to preserve the human and natural environment and to compensate for damage caused to the environment by him or her.”
If Alex Salmond thought he was dead clever offering a right to housing, the South Africans beat him to it with this from Chapter 2;
Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”
It also appears, though I’m no constitutional laywer, to put limits on what kind of engagements the South African Defence Forces can undertake; “Only the President, as head of the national executive, may authorise the employment of the defence force – in co-operation with the police service; in defence of the Republic; or in fulfilment of an international obligation.”
Article 31 of the Costa Rican Constitution opens the country to those fleeing political persecution; “The territory of Costa Rica shall be a shelter for all those persecuted for political reasons. If their expulsion is decreed on legal grounds, they can never be sent back to the country where they were persecuted.”
Cambodia, like a number of European powers in history, has a policy of neutrality, stating in Article 53 that “The Kingdom of Cambodia adopts a policy of permanent neutrality and non-alignment.” and “The Kingdom of Cambodia shall not joint in any military alliance or military pact which is incompatible with its policy of neutrality.” Article 54 follows on with “The manufacturing, use and storage of nuclear, chemical or biological weapons shall be absolutely prohibited.” (Cambodia wasn’t a GREAT choice perhaps, as it’s apparently super corrupt, but I’ve posted it now…)
(Source for constitutions; University of Richmond, School of Law constitution finder. http://confinder.richmond.edu/)
My point with all of the above is to show that policy infuses constitutions the world over, and I don’t think it so unusual or awful for Scotland to do so too. Of course, should anyone wish a minimalist constitution, I very much hope they will have the ability to express that wish in elections to a constitutional assembly!
#9 by Iain Menzies on January 18, 2013 - 12:33 pm
If you want those things then fine. But why cant parliament (with a more recent mandate than any constitutional assembly) legislate for them?
#10 by AFaulds on January 18, 2013 - 2:08 pm
If you don’t want those things, then fine. But why shouldn’t our constitution (with a mandate from the people for a long lasting, though open to evolution, expression of their fundamental beliefs) enshrine them if a majority did?
We’re clearly of differening opinions on a constitution here and I’d say we both seem rather unlikely to change our view, so further iterations of “but why?” would seem to be pointless, no?
#11 by Iain Menzies on January 18, 2013 - 2:44 pm
Well to a point.
But your answer to my ‘but why’ seems to be ‘because we can’.
And we could, but why should we when we dont have to do it.
repealing some legistlation and amending a constitution should be very different things. A constitution should be the source of authority from which legislation gains its legitimacy. why debase it by making it a tool of policy implementation?
#12 by BM on January 18, 2013 - 8:06 am
One man’s policy decisions is another man’s essential constitutional right. We should remember that all constitutional stances start as policy: universal suffrage, proportional representation, federalism – and that’s just the Liberals.
It would be very easy to argue that free higher education isn’t a policy decision but a human right (the Universal Declaration of Human Rights obligates ratifying countries to develop equitable access to higher education, but we can do better than that!).
A constitution isn’t just the stuff we all agree on either. If you look at the original text of the Norwegian constitution, then you’ll be shocked to read that clause 2 bans Jews and Jesuits from Norway. Obviously, not everyone agreed with this, and the constitution was amended shortly afterwards to lift the ban on Jews (Jesuits would have to wait). Last year, the constitution was amended to disestablish the church. There is a draft amendment to make the monarchy religiously neutral, and another to get rid of the monarchy altogether. Again, not everyone agrees with these amendments, but dissenters is no reason for these to not be implemented.
Constitutions are not set in stone; they’re not some sort of immortal constant. All good constitutions have a built-in mechanism for changing the constitution, whether that be by qualified majority in parliament, or through popular referendum or both.
#13 by Iain Menzies on January 18, 2013 - 12:46 pm
I think where i might be parting ways from what you say is that there is policy, then there is policy.
Certainly universal suffrage was a policy position. But would you really put it on the same level as the legislation meaning that i have to clean up after my dog (which of course i always do)?
I would hope not.
I think there is a major problem with putting something like a right to higher education into a constitution.
Now for what its worth i think that education is in and of itself a social good. I think that the wider economic consequences of high levels of education should be considered but not as the only factor in judging the worth of education.
The issue is not if the right is put in a constitution but HOW the right is. What exatly is higher education? Does an HNC count? or does it have to be an HND? Or PhD?
Thats before we consider what it means for it to be free. Does that mean free at the point of use? IE would it be legal to charge some form of fee post graduation with or without an earnings threshold?
Would such a right be limited to scottish citizens?
What happens if we also decide that there should be borrowing limits on future scottish governments, and for some reason (and outbreak of small pox maybe) funds have to be diverted in a massive scale to some other government area. would it be illegal to transfer funds from education for even a few months to health?
Would that right be only for scottish students in scottish institutions? could a scottish government refuse to support scottish students studying in england?
Or say i found a billion pounds behind the sofa tomorrow and decided i wanted to open a University. But that i wanted to charge fees. And the students that wanted to go to my uni were willing to pay them. Would be be banned from doing so?
Are there time limits on such a right? I have a degree, but in 50 years when i retire….what if i decide that im bored and its too cold to be going onto the golf course everyday and decide i want to go back to uni for a second degree. I could die during the degree….no one but me benefits…why should i get that for free?
Its wrong to put such a right into a constitution (in my view) because it will be almost impossible to get the wording right.
Or maybe we could restrict access to higher education to a ‘well regulated militia’?
#14 by BM on January 18, 2013 - 1:26 pm
We could sit here all day and trade question marks about any given line of any given constitution, because you could pick the same sort of holes in any right, but ultimately, the constitution and people proposing right to free higher education aren’t going to be the ones to answer these questions – that’s the job of a constitutional court.
Judges interpret laws, not the constitutional framers. We may argue that the right to free higher education should be limited to scottish citizens (for example), or that as it is a right, it shouldn’t be restricted to just the young, but ultimately, it’s up to the constitutional interpreters to decide.
I don’t really see this as being problematic.
#15 by Iain Menzies on January 18, 2013 - 2:47 pm
I rather assumed you wouldnt see that as being problematic.
But i personally have a wee bitty of a problem with (one assumes) unelected judges deciding what public services i have acess to over and above my elected representatives.
A written constitution demands a constitutional court. I dont see where the good is in giving that court any greater scope than the absolute minimum.
#16 by BM on January 19, 2013 - 12:17 pm
Let’s take your example of suddenly becoming a billionaire and wanting to start a university that charges fees. We have two scenarios here, one where the right to free education is enshrined as part of the constitutions, and one where the right to free education is merely part of the general body of law. In both scenarios, you get sued since some busy-body considers what you’re doing to be illegal.
In the first scenario, the case is brought to the constitutional court, where judges preside and hand down a decision based on an interpretation of the constitution. In the second scenario, the case is brought to the high court, where judges preside and hand down a decision based on an interpretation of the law.
Why is situation two more acceptable than situation one? Why are judges bad when they enter the constitutional court, but fine and dandy when they enter the high court?
Clauses aren’t added to constitutions so that constitutional courts can have more power/scope. They’re added because they’re considered to be so important that they should be part of basic contract between the state and the people living there.
#17 by Iain Menzies on January 19, 2013 - 1:08 pm
no if you have a right to a free education that may imply that education cannot be charged for, which incidently would place a question mark over the private school sector.
if you legislate for free education, well you wouldnt. what you would legislate for (unless you want to turn tutors into slaves) is to pay student fees for them.
a general right, and legislation aimed at providing a service that would deliver such a perceived right are quite different thing.
it does all depend on how that end is gotten to.
Your second case, which i dont accept at all anyway, is irrelevent, since that is always an issue with bad legislation. Saying that bad legislation is a problem (which is what you just did) is not a good enough reason to have a bad constitution.
#18 by BM on January 20, 2013 - 7:27 am
I may not have made myself very clear, Iain, so here’s the point I’m trying to make: why is it okay for judges to interpret general law, but not constitutional law?
The rest of your comments is a bit speculative. We don’t know the wording of any clause in this hypothetical constitution, and besides which, the right to free primary education hasn’t resulted in the closure of private primary schools – but all this really is beside the point.
#19 by BaffieBox on January 18, 2013 - 12:47 pm
Im in complete agreement and have a half written blog that I may still finish. I fall into the category of wanting to wait until all parties and all people have dropped their referendum baggage and got involved but I also want to start NOW.
IMO, there is much to be gained from Yes Scotland doing this right now. We should be aiming for a two step process. An initial constitution that is ready for adoption after the referendum should be written now, with a revision in the period before actual transfer of power. Getting the initial base version done now will hopefully take care of the initial heavy lifting that enables a rewrite or revision to happen much quicker, and therefore possible within the short timeframe between referendum and transfer of sovereignty.
The initial version doesn’t need to be ambitious in intent – it might only codify a lot of the rights we enjoy right now but there is huge value in the actual process as well as the actual document. An open, tangible, participative process would be a great practical demonstration of the new politics we are trying to initiate, away from the current dregs of so called “debate”. The delivery and publication of a written constitution, 6 months before the referendum would act as a great focal point for the Yes campaign and I dont have any doubt the entire process, as one sided as it will be, will draw people in and engage them in where we want this country to go.
On the content front, I’d have no problems seeing some ambition thrown in that help challenge common misconceptions of the independence campaign: commitment to international bodies such as the UN, commitment to certain treaties like NPT; commitment to an outward looking, benelovent state by, say, stipulation of a minimal level of GDP to foreign aid; if possible, retention of Monarchy in a ceremonial role only with no political or legal power; etc. These are nice to haves and there would need to be careful consideration about it’s scope.
I think this should be done. I asked Patrick Harvie on Twitter why Yes Scotland aren’t but have had no reply. Get an advisory committee together now, and let’s get the ball rolling.
#20 by Indy on January 19, 2013 - 8:25 am
I think, given that the possession of nuclear weapons is in fact illegal, that it would be perfectly reasonable to include that in a constitution.
To say that policy could change – that at some point in the future the possession of weapons of mass destruction could become politically acceptable- doesn’t really cut it for me.
At some point in the future perhaps other fundamental matters could come into question – universal suffrage for example or the right to free speech on certain matters. Or the right of people to marry and found a family. Or the right to privacy. In terms of categorisation why would we see the right to marry and found a family as fundamentally different to the right of children to go to school?
What about the death penalty? Most people think the death penalty should be prohibited in a constitution to reflect the current legal position but that could change too. And where would be the sense in prohibiting in a constitution the death penalty while not prohibiting weapons of mass destruction?
Regarding the issue of going to war – clearly a constitution could not lay down the law about conflicts which have not yet arisen. But it could say that Scotland could not go to war without the Scottish Parliament assenting to it. There is no such provision now. I think most people would think that is reasonable.
It would seem to me that the division of policy/constitutional rights or prohibitions is far from clear.
#21 by Iain Menzies on January 19, 2013 - 1:17 pm
It is not a fact that possession of nuclear weapons is illegal.
but that doesnt matter. The issue isnt about nukes or not nukes, its about the principle.
What you are essentially saying is that certain things should be put in a constitution so that the people of scotland cannot choose do do such and such a thing at a later date.
there are issues with just about every example you mention. too many to put here without wearing out my keyboard.
The problem actually is rights. When you start to put rights in you start to have problems. Such as with a right to education or anything else.
You could say that we have a right to vote. So put in universal sufferage.
But how do you word that? And the wording does matter. If not worded properly then does that extend to every person in scotland on the day of an election? Or kin the few weeks prior to an election when you could vote by post? WOuld it extend to those judged to be ‘insane’? Or those criminals in prison on a long sentence? If society as a whole judges that certain acts break the social contract in such a way as to justify the withdrawl of the franchise would you be able to do that with a constitution that enshrines the right to vote?