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A written constitution highlights the excesses of Westminster

  • First published in : Visit Website
  • First published on: 23rd Jun 2023

Today is the 7th anniversary of the Brexit referendum. The economic damage is plain to see but Labour doesn’t want to talk about it and of course, neither do the Conservatives. The only way Scotland will re-join the EU is with independence.  

Likewise, we know that the only way meaningful constitutional reform will come about in Scotland is with independence. We saw a prime example of that this week, when, after nearly a century of talking about reforming the House of Lords and recently promising to abolish it and replace it with an elected upper chamber, Labour briefed out their plans to pack the place with new peers if they win the General Election.

From the unlawful prorogation to the post Brexit power grab of the Internal Market Act the last few years have amply demonstrated that the unwritten British constitution does not work to protect our institutions or our people from the tyranny of governments who don’t play by the rules. The Tories, particularly under Johnson, have been able to undermine parliament, the independence of the courts and the devolution settlement. With a written constitution none of this would have been possible, or at least a great deal more difficult. Yet we know that just as with re-joining the EU neither Tories nor Labour are interested in establishing a written constitution for the UK.

So, this week’s white paper from the Scottish Government was a welcome reminder that an independent Scotland will have a written constitution reflecting the international norm.

A written constitution is a basic necessity to control the excesses of majoritarianism (see Boris Johnson), to protect our institutions, to provide checks and balances on the power of government and to put democracy, human rights and equality at the heart of everything we do as a nation.

The SNP’s commitment that an independent Scotland should have a written constitution goes way back. Much work was done on this by Prof Neil MacCormick QC prior to his untimely death in 2009. In 2002, after several drafts, he published a Constitution for a Free Scotland. In 2014 prior to the independence referendum the Scottish Government produced and consulted on an interim written constitution and plans to involve civic Scotland in drawing up a permanent constitution after independence was won. For several years Constitution for Scotland have been conducting an online public consultation on what such a constitution might look like. In 2018 the Common Weal Think tank produced a policy paper called Foundations for Freedom which has much in common with the new Scottish government white paper. Both credit Dr Elliot Bulmer who has worked hard to promote the idea of a written constitution for an independent Scotland. Accordingly, it has never really been in question that an independent Scotland should have a written constitution. The real issues for discussion are what it should look like and who gets to decide what is in it.

Let’s start with who decides. What the Scottish Government propose now by way of process is not all that different from was proposed in 2014 however there is a welcome expansion of the detail of what our written constitution might cover both in the interim and the long term. On process, the interim constitution drawn up by the Government takes effect on day one of independence and is later replaced by a permanent constitution drawn up by a constitutional convention which will be a body independent of parliament and representative of the people of Scotland.

By contrast Common Weal want to see the interim or provisional constitution drawn up by a representative constitutional conference with further deliberation post-independence in an inclusive and participatory process to expand upon the basic interim constitution, for example, by including the question of whether Scotland should be a republic and the expansion of rights to include socio-economic rights. It is good that everyone wants to see citizen participation in the framing of the constitution. The real difference is whether that happens before or after independence. Like my fellow columnist Lesley Riddoch, my preference would be for the former.

As to what is in the constitution the SNP white paper sets out some of the important institutional frameworks and safeguards for a democratic state. Likewise, the Common Weal paper recognised that the “priority for a provisional constitution should be to protect Scotland’s existing institutions by placing them on a firm constitutional foundation, while adjusting them to an independent state.” Both recognise that Scotland is fortunate in already having in place many of the building blocks of statehood such as a parliament, a government, courts and a legal system, a police force, an ombudsperson, an auditor general and most aspects of internal administration.

Laudably the Scottish Government white paper wants to “spread power among the institutions and communities of Scotland rather than locating it in only one place”. For example, the interim constitution would include a provision reflecting and protecting the specific interests and needs of island communities and for the long-term it says the Scottish government would support the constitutional protection of the islands interests and needs.

The Scottish Government white paper rightly puts the basic human rights contained in the European Convention on Human Rights (ECHR) at the centre of the protection of universal human rights in the constitution. This is an absolute necessity for Scotland’s accession to both the Council of Europe and the European Union. It also seeks to enshrine socio-economic rights such as the right to access healthcare free at the point of need and the right to an adequate standard of living as defined by the Universal Declaration of Human Rights. The Common Weal draft were content to leave these rights for those deliberating on the final constitution. I think they were right to do so.

Whether and how to incorporate socio-economic rights is an issue fraught with political controversy. Many take the view that economic and social rights are better left as aspirational policy goals rather than enforceable legal rights. It is also argued that incorporating such rights in law would allow the courts to usurp the functions of the democratically elected Government and Parliament and that it would lead to judicial involvement in resource allocation which is constitutionally inappropriate.

Post-Apartheid South Africa’s decision to incorporate such rights in their Bill of Rights has posed considerable challenges for the ANC government. Yet Albie Sachs has argued that a country which does not include social and economic rights in some form in its Bill of Rights is a country which has “given up on aspiration”.

The bottom line is this, no matter what it says about an adequate standard of living a written constitution won’t put food on the table for families across Scotland. For that we need a growing economy and wealth redistribution. Enshrining the NHS won’t help us get healthcare when we need it. For that we need to keep our NHS properly resourced, organised and staffed. Likewise enshrining the specific interests and needs of island communities will not give communities the power to thrive without ensuring local people have proper control of their local areas and aren’t just small parts of enormous local authorities. Nor will mere words ensure the modern efficient ferry service our islands so desperately need.

While reiterating our commitment to a written constitution is worthwhile, the inclusion of aspirational goals is no substitute for the hard work that needs to be done on policy to deliver a flourishing economy that creates the wealth needed to fund public services that work well for all. Here also the Scottish Government should look to the policy papers of Common Weal for inspiration, as my colleagues Kate Forbes, Ivan McKee and Michelle Thomson have already advocated.

After I had finished writing this column, I heard the sad news that Winnie Ewing, ‘Madame Ecosse’, has died. She was an icon of our independence movement. What she achieved should inspire us to look beyond and above current difficulties and to remember that our goal and the transformative change that could come with it are possible.