EVERYONE agrees an independent Scotland should have a written constitution. The only real debate is about how it should be drawn up and who should do that.
At the SNP conference in September, Mike Russell announced that he wants to have a transitional constitution in place next year, ready for the indyref promised in 2023. There was some criticism. What Mike seemed to be envisaging was a constitution drawn up by a panel of self-selected experts, albeit in consultation with the wider Yes movement.
Lesley Riddoch argued that the job is too big for one party or even one side of the constitutional debate and that the task of framing the constitution should be handed over to the people. I agree with Lesley, but the difficulty is there may not be time to do that before 2023.
The SNP have been working on the idea of a written constitution for many years. The late great Professor Sir Neil McCormick QC, a former MEP and former vice president of the party, did a considerable amount of work on what the constitution of an independent Scotland might look like between 1977 and 2002. He produced several drafts culminating in the publication of a Constitution for a Free Scotland in 2002. The text is on Wikipedia via en.wikipedia.org/wiki/A_Constitution_for_a_Free_Scotland
READ MORE: Jeremy Corbyn: Second Scottish independence referendum will happen ‘within a few years’
Dr Elliot Bulmer, author of a number of works on the Scottish constitution – including A Constitution for the Common Good: Strengthening Scottish Democracy after the Independence Referendum – has identified that since the SNP came to power in 2007, the focus changed from pre-independence constitution-making to post-independence constitution-making.
In the summer of 2014, prior to the independence referendum, the Scottish Government carried out a consultation exercise on an interim Constitution for Scotland. They said: “The creation of a written constitution will be an important development for Scotland. A written constitution is more than a legal document. It is a statement of intent for the nation. The process of coming together to develop, draft and approve such a document is an important part of defining the sort of nation we wish Scotland to be.”
I could not agree with this statement more.
Yesterday I spoke at a symposium on a written constitution for the UK at the Bonavero Institute of Human Rights at the University of Oxford. Those taking part had been asked to comment on a paper by Jeff King, a law professor at University College London, who argues that the UK should have a written constitution drawn up by a constitutional convention composed of both ordinary citizens and politicians. This is a little different from a citizens’ assembly in that the job of a constituent assembly would be not just to deliberate and to report, but also to draw up the constitution and make sure it is delivered. For this political buy-in is required so that those who hold political power will accept and enact its recommendations.
Professor King thinks the constituent assembly should be made up one-third of citizens and two-thirds of professional politicians. Its job would be to represent the people and debate the right questions in an informed and complete manner. As with a citizens’ assembly, experts will be on tap rather than on top – the constitution won’t be written by academics, constitutional and legal experts, but rather they will give evidence to and assist those writing in their deliberations.
I really like this idea, but not for the UK. Scotland would be too marginalised as but a small part of the UK. Besides, it’s not going to happen. But I like it as an idea for Scotland.
The proposal is not an entirely new one. In one of the key responses to the Scottish Government’s 2014 consultation, Professor Alan Renwick, also of University College London, recommended a broadly similar approach – with two-thirds citizens and one-third politicians – to the Scottish Government and pointed to the precedent set by Ireland’s Constitutional Convention of 2012–14.
He said the body chosen to devise the constitution “should comprise a majority of ordinary citizens chosen at random from the electoral register (though with the option to decline the invitation) and a minority of politicians chosen by parties”.
He also said it was important that the convention had the “time and resources for extended learning, deliberation, and decision phases, backed up by consultation with experts, activists, and ordinary citizens”. Finally, “the convention’s recommendations should automatically be put to the people in a referendum. There should be no opportunity for political intercession at this stage.”
READ MORE: Get one month free with a National annual subscription for Hallowe'en
He pointed to the failure of Iceland’s crowdsourced constitution project because party politicians were expressly excluded with the result that political legitimacy was weakened. “In Iceland, despite the quality of the council’s deliberations and despite a positive referendum vote for the implementation of its draft constitution, politicians who felt excluded from the process have blocked its enactment.”
In the Irish model, concerns were initially raised that the mixture of two-thirds citizens to one-third elected politicians would not work because the politicians would dominate, and the ordinary citizens’ voice would not be heard. Happily, the experience did not bear that out as the whole thing was properly moderated and facilitated. After the constituent assembly submits its constitutional recommendations, Professor Renwick proposed that the Scottish Government should put them to a referendum automatically, without further political interference, and respect the outcome of that referendum.
It’s a pity that Professor Renwick’s plan has not been actioned since 2014. I fear the reality is that there is not enough time to action it before 2023, and so Scotland will have to settle in the meantime for a transitional constitution written by an expert elite. It is imperative that we don’t do so without proper consultation with the general public and with civil society. And a firm commitment must be made that the transitional constitution will fall soon after independence happens and be replaced with one drafted by a constituent assembly.
This would fit with what Mike Russell is envisaging as he has been careful to emphasise that the constitution he has promised next year is strictly one for transitional purposes, and that once independence is achieved, “all the citizens of the new state can join in the effort”.
Let’s make sure that happens.
Why are you making commenting on The National only available to subscribers?
We know there are thousands of National readers who want to debate, argue and go back and forth in the comments section of our stories. We’ve got the most informed readers in Scotland, asking each other the big questions about the future of our country.
Unfortunately, though, these important debates are being spoiled by a vocal minority of trolls who aren’t really interested in the issues, try to derail the conversations, register under fake names, and post vile abuse.
So that’s why we’ve decided to make the ability to comment only available to our paying subscribers. That way, all the trolls who post abuse on our website will have to pay if they want to join the debate – and risk a permanent ban from the account that they subscribe with.
The conversation will go back to what it should be about – people who care passionately about the issues, but disagree constructively on what we should do about them. Let’s get that debate started!
Callum Baird, Editor of The National
Comments: Our rules
We want our comments to be a lively and valuable part of our community - a place where readers can debate and engage with the most important local issues. The ability to comment on our stories is a privilege, not a right, however, and that privilege may be withdrawn if it is abused or misused.
Please report any comments that break our rules.
Read the rules hereLast Updated:
Report this comment Cancel