It might seem like an odd question. Isn’t that all we’re going to be talking about for the next 880 days? The trouble is we’re only talking about whether Scotland should be an independent state. And that’s really only the most basic issue. If the essay question says “discuss the American Constitution”, just writing “um, they’re independent?” gets you precisely zero marks.
The UK currently has no single codified constitution – although the Scotland Acts and the Parliament Acts are regarded as constitutional documents, and some would argue, so too are even famous commentaries on the constitution. Assuming an independent Scotland improves upon this unclear arrangement, a few key questions arise. Who drafts the constitution and when? Who approves it and when? What does it contain and how can it be modified?
This isn’t some dry set of issues for constitutional academics. The answers to those questions, plus the text of a final constitution itself, would determine how decisions are made in an independent Scotland, potentially in broad terms for generations to come. Although what decisions are made is the policy arena, not the constitutional one, the two interact powerfully as well. A constitution that enshrines tough rules on access to government information will tend to make decisions on the assumption they will be properly scrutinised, for example, while one that retains the hereditary principle will tend to protect vested interests.
In an ideal world, we would have a government committed to popular control of the whole process, something I made an argument for almost a year ago, involving the Scottish people in the process before the vote, so they have their say on the question, the offer, not just the answer. That looks like it’s not going to happen. In fact, the SNP already know what the constitution will be, because they wrote it almost a decade ago. The full (short) text of their Constitution for A Free Scotland is here. I’ve been unable to track down a 2011 version referred to online, so that’s the best I’ve got to go on.
And it’s dire. It describes a Scotland I do not wish to see birthed in October 2014. The hereditary principle is enshrined, for a start, lumbering us with “Queen Elizabeth and her successors“, and as head of state she “shall be responsible for the exercise of all lawful governmental functions in Scotland” upon the advice of Ministers. If Parliament doesn’t pick a First Minister, that power then also lies with the Queen, who can choose to dissolve Parliament instead if she likes. Really? Even to authors writing in 2002 should that not have felt about a hundred years out of date?
Article II paragraph 7 also requires every single tax-generating power to be renewed every eighteen months. It’s a Taxpayers’ Alliance wet dream – the argument for every tax on income, wealth, sin or profit has to be won again every cycle.
It’s also totally out of date, even in terminology. The Presiding Officer is described as “the Chancellor of Scotland” for purposes of regency. I said “First Minister” above, but actually we’re to replace that with “Prime Minister“. Maybe, but I’m not sure there’s a need. A by-election is required to fill a vacancy at Holyrood, irrespective of whether it’s for a list or constituency MSP – have our unelected constitutional framers decided to move away from the current electoral system, which, it should be noted, was already in use when this bizarre document was drafted? Actually, they don’t specify the form of PR to be used. That’s up to the Government. Perhaps you find that reassuring. I do not, given the shocking ballot-paper fiddle Westminster Labour imposed on Holyrood in 2007.
And many other key decisions are taken for us. Should we have a second revising Chamber in an independent Scotland? The framers say no. I’m relatively neutral on the subject, depending on the other structures around the main Chamber. But shouldn’t that be something considered by more than a few high heedjins of the SNP behind closed doors? Likewise, do we really want to see judges appointed for life?
Or a Scotland which permits the death penalty during war or during imminent threat of war? Is this brave new nation of ours to be one where the rights conferred by the constitution can be ignored if the purpose is the imposition of “restrictions on the political activities of aliens“? I repeat, this constitution would permit restrictions on political activities only of “aliens“. A list of other exemptions also apply to these protections, including “the prevention of crime or civil disorder“. There would be no limit, effectively, to a Blair/Brown-style disregard for civil liberties, and any protest whatsoever could be clamped down upon in the name of public safety or order.
Bulmer’s admirable and constructive 2011 paper “An Analysis of the Scottish National Party’s Draft Constitution for Scotland” flags up a series of other problems. There’s nothing in this bizarre tract on parties, the impartiality of the civil service, or votes of confidence, and Bulmer also raises concerns about the ability of Ministers to interfere with the electoral system. Across the issue of the appointment and removal of “Prime Ministers”, he notes that “the draft Constitution appears as a retrograde step when compared with the Scotland Act“.
Overall, Bulmer says, “the draft Constitution appears not only much less radical than at first sight, but also much less technically competent that it ought to be“, and inherits much from the first draft, written in 1977, when “much of the work was done by small groups of friends in late-night whisky sessions“. That might be understandable in the 1970s, when independence was quite the cranky fringe project, but times have changed, and as Bulmer says, “fewer excuses can be made for the 2002 version. The draft Constitution reads as if the Claim of Right, the Scotland Act and the Consultative Steering Group, had never existed.”
The general problem here is that this is the kind of dross people cook up when the public aren’t involved. And it doesn’t have to be like that, even at this stage, despite the year the SNP majority government has just wasted, including on a limited consultation that didn’t touch on any of these issues.
There’s still time for a commitment to an open Iceland-style constitutional process. A pledge that a successful yes vote will not just lead to Scottish Ministers haggling with UK Ministers, it’ll lead to the Scottish people being asked what kind of new and, dare I say it, better nation they want to live in. A promise that they’ll get to ratify their work in another referendum, something that wouldn’t have been necessary if the last year had seen Ministers launch an open and participatory process, rather than another top-down elite project. If time isn’t found by the SNP leadership to make those basic commitments they will instead make a wide variety of rods for the collective backs of those of us who are committed to genuine independence.
Every time a member of the Yoonyonisht Conshpirashy finds themselves on a doorstep with a waverer, this approach gives them a perfect excuse to pour the voter’s worst fears into their ears. “Want the Queen? Don’t want the Queen? The SNP aren’t giving you a choice. It’s take it or leave it. Want to see an open constitutional process? Forget it. They don’t trust you. It’s a pig in a poke.” That’s the sort of poison this approach hands the defenders of the unaccountable and apparently unreformable Westminster system. In fact, as my esteemed colleague Aidan pointed out to me, is that any switch from the Queen will in fact be harder if a first referendum of the SNP’s preferred sort has been won, predicated as it appears to be on retaining the hereditary principle.
Instead let’s open the doors and let the people in. This is an extraordinary opportunity, most likely the only one I will see in my lifetime. We should have the chance to create a Scotland fit for our ambitions and our optimistic imagination, yet if there is no change of tack then that opportunity risks foundering on the arrogance of this SNP administration.