Secure Foundations: Laying the constitutional groundwork of a Scottish State.
by Elias Blum
The First Minister has indicated that she wishes to re-boot the independence movement – to shift the debate away from tactics, such as the timing of the next referendum, and back onto the high ground of making the case for independence. In making that case, it is important to begin with a clear understanding of what independence is, what independence is for, and why it matters.
Independence is nothing less than the creation of a Scottish state – a state which, recognised as sovereign in international law, will take its equal place in Europe, the Commonwealth and the world. The Scottish independence movement is therefore, necessarily, a state-building movement. Its purpose is to enable the people of Scotland to exercise democratic control over the government of Scotland, in order to pursue policies that meet our needs and aspirations. It matters because policies imposed by the UK in a range of areas – from austerity and punitive sanctions against the poorest to the war in Iraq and hard Brexit – have not generally met our needs and aspirations.
It is no coincidence that the ‘arc of prosperity’ and ‘arc of democracy’ so closely align. The countries routinely topping international Human Development indices are also those with the best rankings for quality of democracy. The distribution of the tax burden and the quality of public services are reflections, above all, of democratic performance. Likewise, the question of whether laws and policies are tailored to favour the privileged few or the common good depends on whether the government is effectively held accountable to the people, or whether it is in the pockets of rich donors and corporate and financial interests. That is why arguing about GERS figures is irrelevant. Independence is a question of democracy, not accountancy.
The whole case for independence rests on one key assumption: that the workaday lives of the people of Scotland will be improved by the creation of a democratic Scottish State – a State that represents the interests and meets the demands of the people. The problem with the UK is not that it is ‘British’ rather than ‘Scottish’, but that its ossified, hierarchical and profoundly oligarchic structures cannot be reformed in a way that would make them responsive to Scotland’s interests and demands.
Unfortunately, independence itself is no guarantee that things will turn out well. Many countries have become independent only to fall into authoritarianism, corruption and misrule. Often, they put all their efforts into independence and had little thought for how they would govern themselves democratically afterwards. In the words of a senior Kenyan politician: ‘In 1963, we wanted independence. We did not think about building institutions of good governance. We just thought independence was the main thing, and we’d worry about all that constitutional business later. So we became independent, and the KANU party took office, closed down the democratic space and centralised power until we had become a one-party dictatorship.’
Of course Scotland is not Kenya. We are starting from a much more favourable position in terms of both democratic experience and overall development. Yet the point stands. The countries that have prospered and developed after independence are precisely those in which politics has rested upon stable and broadly agreed constitutional foundations. It is not enough to free ourselves from Westminster. To reap the benefits and mitigate the risks of independence, we have to build consensus, in advance, around robust institutions of democracy.
The constitution is therefore central to the case for independence. A constitution (as the word is understood in almost every democracy except the UK) is a fundamental law that defines the state, establishes and regulates its institutions, protects the rights of citizens, and in general provides an overarching legal framework for the conduct of politics. Crucially, a constitution has a special procedure for amendment – typically a two-thirds majority or other supermajority in Parliament, often coupled with a referendum. This means that the government cannot unilaterally change the ground rules of politics. Our rights and democratic institutions are protected from hasty or partisan change.
The principle that there should be a written Constitution has been longstanding SNP policy. Much good work has been done on this front. Neil MacCormick authored a text formally adopted by the SNP, most recently in 2002, which although perhaps not perfect, represented the essence of a viable and acceptable Constitution for Scotland. However, the draft interim constitution proposed in 2014 was a disappointing effort. While it contained some promising principles, such as a commitment to both popular sovereignty and the European Convention on Human Rights, it contained little of the basic institutional detail require of a constitution, and would have been deficient even as an interim measure.
In part, this is because the Scottish Government misunderstood the nature of a constitution and misjudged its centrality to the independence case. They saw it as a way of constitutionalising certain policy proposals, and not as a basic charter that would provide the institutional frameworks and safeguards for democratic government. The 2014 draft included a commitment to the removal of nuclear weapons, but said nothing about the building blocks of democracy, like how Parliament was to be elected, the First Minister chosen, or the independence of the judiciary and civil service protected. Yet it is on such dry, dull, mechanical details that the success of a Scottish Constitution – and in consequence the success of Scottish independence – rests. Only by developing a Constitution that safeguards democracy and human rights can the independence movement provide reassurance to waverers.
That need for reassurance demands that a provisional constitution be developed before the next referendum. The homework should be done in advance of the vote, as it was by the Constitutional Convention before the 1997 referendum. The constitution has to be a national, and not a partisan, document, and perhaps the best way of proceeding would be to appoint a Commission, with a broad membership and wide consultative remit, to develop a text. That text, which will reflect a certain consensus about specific institutions – and not the abstract idea of independence – should be the subject of the next referendum.
This approach (which was adopted, for example, in Malta in 1964) has several advantages. On the one hand, it provides small-c conservatives with the certainty and reassurance that an independent Scotland will not be the next Cuba or Zimbabwe. On the other hand, protecting human rights and democratic processes may attract small-l liberals disenchanted by the UK’s authoritarian drift.
Developing a minimal but robust and sufficient constitution need not be difficult. It is a well-worn path. Although the UK has no written constitution, it has been the midwife of many. Dozens of the world’s constitutions were drafted with the assistance of British officials at Lancaster House. As a provisional measure, a constitution conforming to that tried and tested ‘Lancaster House’ model, but reflecting the existing provisions of the Scotland Act such as proportional representation, fixed term parliaments, and the election of the First Minister by Parliament, would be a great step forwards.
That provisional constitution would come into effect immediately on independence day and would see Scotland safely through the first years of independence. There would then be scope, during the first session of an independent Parliament for a more participatory constitution-building process which, if the people so desire, and if there is a sufficiently broad consensus, might lead to a more progressive and transformative constitution. Alternatively, we might find that a good provisional constitution is sufficient, that it becomes hallowed by practice, and that – like the French Constitution of 1875 and the German Constitution of 1949 – it loses its provisional character over time. Either way, a sound constitution foundation is necessary for the construction of a new Scottish state.