A Provisional Constitution for Scotland

by Elias Blum

As I’ve been thinking recently about the process of constitutional change in Scotland, I’ve become convinced that there’s a need for a two-stage process.

In the first instance, there should be a Provisional Constitution, which should be put to the people ahead of the independence referendum and which should come into effect on the day of independence. This would be a safe, tried-and-tested constitution that provides stability and reassurance, while building on existing institutional structures and accepted European Human Rights law. 

Secondly, after independence, there would be scope for a more participatory constitution-building mechanism, which (if people so desire, and if there is a sufficient consensus around it) might then lead to a more progressive and transformative constitution.

This is related to another conclusion: that a minimal constitution, as a safeguard and a reassurance, is not optional, but that a maximal constitution, as a transformative and aspirational instrument, is optional. The Provisional Constitution must be sufficient to do service as a minimal constitution. It’s the baseline. If we want to go beyond that, we can, but we need to have that basic guarantee of democracy and human rights in place from the outset.

I’m in the process of writing all this up in a little article that can feed into the policy process, but I have taken the liberty of drafting such a Provisional Constitution – just to provide an example of what such a constitution might look like.  The intention is to be robust and thorough, on a technical level of constitutional drafting, while only deviating from existing institutional models to the extent necessary for the creation of an independent state.