Curate's EggThe question of an independent Scotland’s constitution is being finally discussed by the SNP – as opposed merely to the “constitutional question”, i.e. simply whether we should choose independence. The First Minister, in a speech yesterday, even noted that “since no single party or individual has a monopoly on good ideas; all parties, and all individuals, will be encouraged to contribute“. This is major progress on the previous position, which was that the dire constitution written by the late Professor McCormick for the SNP would be what we’d use.

A better constitution is one of the key reasons for independence, for me. Westminster’s uncodified structures lack many key protections for individuals, they’re opaque and impossible for anyone outside Parliament itself to modify, and they say nothing about any aspirations or values that ideally should be associated with the British state. And the nature of that Scottish constitution is vital. It’s not enough merely to be an independent state: it’s time to be a better state as well as a better nation. Crucially, as the First Minister accepts, such a constitution “should enshrine the people’s sovereignty“, not Parliament’s.

Although this is a very welcome shift, there are still two key problems with it.

First, some of the content he proposes is policy. This is a category mistake: constitutions should be the rules for governing a state and protections for individuals and groups against majoritarianism. Like Salmond, I am against illegal wars, nuclear weapons, homelessness, and access to education being based on means rather than ability. But those are policy positions that should be determined by the voters in post-indy general elections, not enshrined into a constitution as sacrosanct. The Tories (and presumably Labour and the Lib Dems, if the latter still exist by then) will go into any 2016 election for an independent Scottish parliament backing the retention of Trident. I think they’re wrong, but if a majority of Scots agree with them, the weapons should stay. We can’t write a document that makes a legitimate position like that unconstitutional. I note here that Green policy also supports this position on nukes, incidentally, in case anyone thinks I always just parrot the party line.

Second, the timing. The Scottish public still won’t know anything about that constitution before they vote in October 2014. Will they genuinely be sovereign in that new Scotland? It’s not clear. And it doesn’t need to be like that. Two years before the 1997 referendum, the Scottish Constitutional Convention had, through a pretty open process, agreed what a devolved Holyrood would look like. The contents of the poke were clear. Over the next 21 months the entire Yes campaign could be transformed by a similar process. Meetings around the country, debates about vision and democracy and values, not just endless sniping about the economic costs and benefits of the process (which are broadly unknowable anyway).

The alternative to such a process is not only unreliable and uninspiring, it’s also deeply problematic. On what basis would the institutions of an independent Scotland operate during the long hiatus between a putative Yes vote and the ratification of a proper constitution? What bad habits might become ingrained? Do we really want a second referendum once it’s written rather than one clear vote on a particular model of independence? (there are advantages to a second process, I accept, not least that a menu of options could be more easily offered, Icelandic-style)

Still, without wishing to sound like the curate above, this speech remains substantial progress. The actual constitution is on the table, and there’s still time for the Yes campaign to take the next essential step. Put the people in charge, and then let the people decide.