The Constitutional Commission

Before describing the process and events that led to the establishment of the Constitutional Commission, it is important to point out that the Commission is independent, non-partisan, non profit-making and non-sectarian.
In 1995 the Scottish Constitutional Convention presented “Scotland’s Parliament, Scotland’s Right” to the people of Scotland. That led directly to the devolution referendum and the Parliament at Holyrood. The eleven or so years since have seen many changes, some of them for the better. However, contrary to the expectations of many, devolution has not diminished the desire for more autonomy for Scotland. When this is coupled with a corresponding desire south of the border for “English votes for English matters”, there can be little doubt that both Scotland and the UK are in constitutional crisis.

Kenyon Wright and John Drummond celebrate the launch of the Constitutional CommissionThe last Scottish General Election was dominated by the constitutional debate, and there are compelling reasons for a fundamental rethink about Scotland’s constitutional future. The political process is inadequate and inappropriate for such a major rethink, partly because it tends to be self-serving and opportunistic, but also because it has not shown itself able to think constitutionally and strategically, which is precisely the kind of thinking that Scotland most needs at this point in her history. The time has come for a very different kind of debate about Scotland’s constitutional future, a debate that is not the sole province of politicians. That is why we have set up a Constitutional Commission for Scotland.  Before saying more about the Commission, it is worth outlining briefly why we felt it necessary to set it up. There are five compelling reasons for doing so.

Sovereignty of the People
Scotland was taken to war against the wishes of its people, by a government that commands the support of only a small minority of the UK electorate. In a mature democracy with a proper constitution that simply could not happen. Yet, if some politicians and others are to be believed, Scotland is strangely incompetent to decide the big issues affecting its future. As if this were not enough, our human and legal rights are under serious threat from politicians who use the pretext of the “war on terror”. In most other liberal democracies the kinds of changes put through by the British Government would require the consent of at least two-thirds of the electorate and would, in any event, be subject to the overriding scrutiny and veto of a constitutional court, an institution conspicuously absent from the UK. What is happening, in effect, is that the distinctly English principle of the “absolute sovereignty of Parliament” is being used to control Scotland, where this principle has never been recognised. In Scotland, sovereignty resides with the people and this principle was formally confirmed in 1989 when some prominent Scots put their names to the Constitutional Convention’s Claim of Right, which affirmed “the sovereign right of the people of Scotland to determine how they will be governed.” That claim and those signatures (including those of the great majority of Scotland’s Westminster MPs) as well as many local authorities, academics and trade unions, effectively denied the right of Westminster to absolute sovereignty. However, if it is to have any practical impact, the Scottish principle has to be asserted more explicitly and should be enshrined in a Scottish Constitution.

More Powers for the Scottish Parliament
There is a groundswell of opinion in Scotland in favour of more powers for the Scottish Parliament. Some people want it to have a lot more power, even independence. Others would be content with just a few additional powers. Whatever the arguments, the question remains: who ultimately decides this question? Although Jack McConnell stated in Holyrood that “I agree that the people of Scotland should ultimately decide what Scotland’s constitutional position should be”, this begs the questions of when and how would the people take that decision? In other countries the answers to these questions would be clearer, because they would be found in the country’s constitution. In this country, however, the answers vary at the whim of whichever party is in power. For example, in the 1978 devolution referendum the consent of at least 40% of those entitled to vote was required for devolution to go through, whereas in the more recent referendum that requirement was conveniently ignored. It is time that Scotland had constitutional clarity and stability.

The Rise of Englishness
There is a corresponding groundswell of opinion in England in favour of English votes for English matters. This will probably happen, in some form or another. It could take the form of only English MPs being allowed to debate and vote on English matters. Or it could take the form of an English Parliament, with powers equivalent to Scotland’s and with its own Executive. Either way, it will raise fundamental questions about the role of the UK Parliament because, once purely English business has been take away from it, it will not have much left to do. True, it will have defence and foreign policy, but these matters do not occupy much parliamentary time. And while many assume that a residual UK Parliament will retain overall responsibility for taxation, an English parliament is unlikely to accept a block grant system, simply because of the sheer scale of its expenditure. One way or another, major tax-raising powers will eventually come to Scotland and England. When combined with the advent of an English Parliament, that will have the effect of significantly diminishing the role of the UK Parliament. And that, in turn, will call the nature and future of the Union into serious question. It is much better to plan for this eventuality than to wait until it happens and respond in crisis mode. The planning will involve many things, but it will certainly involve making some clear decisions about the Constitution of Scotland and about our relationship with England and the other countries of the UK.

Diverging Moral Climates
Although there are some who want us to be more “British” and are struggling to define what this means, there can be little doubt that Scotland and England are diverging in some important respects. At one time it was thought that devolution would cater for the differences (e.g. free tuition fees, free care for the elderly, the treatment of young offenders etc.), but the Iraq war, Trident, and immigration suggests that the divergence runs much deeper and wider, into matters currently reserved to Westminster. This divergence is likely to increase and is unsustainable in the long run. It can be addressed only with new constitutional settlements in Scotland and England.

Participation and the political process
The Power Inquiry Report highlighted just how much power has been take away from the people, by politicians and civil servants. In theory at least, the Scottish Constitutional Convention ensured that the Scottish Parliament is shaped and developed by a consensus that includes a broad spectrum of society and not just politicians. However, the early promise of a “participative democracy” in Scotland has not been fulfilled. There is an urgent need to debate the distribution and exercise of power in Scotland. In essence, that is a debate about Scotland’s Constitution because it through their constitutions that the people of any country express such matters. It is increasingly clear that the formal political processes are no longer capable on their own of solving the many difficult issues of governance in a rapidly changing world. And there can be little doubt that there has been a widespread collapse of trust in politics and politicians. This is deep rooted and cannot be met by “tweaking the existing system, with a bit a new technology here, or a consultation there. The result is that no political space is being created for the new politics and new ideas to emerge. A new politics will only be born once the structural problems within the present system are addressed” (Helena Kennedy in the introduction to the Power Inquiry Report). The Constitutional Commission could help to create that much needed new political space in Scotland.

The Constitutional Commission will host and facilitate a national debate that will be different in several significant respects:

It will focus on a Scottish Constitution
This will be the first time in the history of Scotland that a national debate takes place on what a Scottish Constitution should be. Until now, all debates about “constitutional matters” have focused on the Union, or independence, or something in between, and have tended to be conducted on adversarial party political lines. The current crisis demands a more mature debate about the Scottish Constitution itself. It will include a strong educational element because, living under an unwritten constitution that can be changed on a whim by whichever party controls Westminster, many people in Scotland are illiterate about the content and significance of constitutions.

It will be guided by the principle that sovereignty resides with the people
If Scotland is to have a written Constitution, the Scottish principle that sovereignty resides with the people implies that it should be the people of Scotland who decide what it should contain, rather than a Parliament or politicians. Similarly, it should be the people of Scotland who decide what relationship they want with England or, indeed, any country.

It will be a world first
To the best of our knowledge, it will be the first time the people of any nation gets to decide what the details of their Constitution should be, as opposed to ratifying it after someone else has decided. This will be a story that could attract the world’s attention. And it is an historic opportunity to draw from the best of the world’s constitutions (there are some excellent ones), as well to add some uniquely Scottish elements.

It will not be controlled or dominated by politicians
This really will be for the people and by the people. Politicians will want a Constitution that tends to favour them and their party. The likelihood is that the people will want Constitution that favours Scotland as a whole.

Many might say, as did Donald Dewar, that the current devolution arrangements are “the settled will of the people of Scotland” and that there is no need for further change. That would be true if all options had been presented to the people in the referendum. In fact, only two options were offered – devolution or the status quo. Other options were never put. So, the jury is still out on what the settled will of the people of Scotland is. Whatever it turns out to be, it has to find a more accurate means of expressing itself. It is wholly legitimate to attempt to find that means.

Others might question the right of the people of Scotland to decide what their constitutional future should be. In fact, that right is powerfully enshrined in two important legal principles, one fairly well known and one less so. The first principle, as we have already noted, is the distinctly Scottish principle of the “sovereignty of the people”. This has been asserted in the past (e.g. Lord Cooper in McCormick and others v HMA, 1952) and, of course, more recently when some notable Scots signed the Claim of Right. The second principle is the “right to self determination”, as stated in the United Nations Charter, to which the UK is signatory. The International Court of Justice (which is the United Nations’ own court) has confirmed that the right to self-determination is a right held by people rather than a right held by governments. That chimes well with “sovereignty of the people”. And the two important United Nations studies on the right to self-determination set out general conditions that give rise to the right. They are: a history of independence or self-rule in an identifiable territory; a distinct culture; and a will and capability to regain self-governance. Scotland surely qualifies for the right on all three counts.

The Constitutional Commission will be composed of a number of citizens from different areas of Scottish society, who have recognised credibility and authority, but who will work openly and widely with civil society. The Commission has four broad aims:

1. To ensure that any proposals for constitutional developments that affect Scotland are fully debated and decided in Scotland
2. To examine how the proposals of the Power Inquiry for more participative governance could be implemented in Scotland
3. To clarify the constitutional implications of various forms of relationship with other countries of the UK
4. To prepare the broad outline of a draft Constitution for Scotland

Some might wonder why all these issues cannot be decided within Scotland’s Parliament. It is worth quoting again from the Power Inquiry: “Changes of this magnitude cannot be left simply to elected representatives…Only a sustained campaign for change from outside the democratic assemblies and parliaments of the UK will ensure that meaningful reform occurs. We, the people, have to stake our claim on power.” (Concluding words of the Executive Summary of the Power Inquiry)

One Response to The Constitutional Commission

  1. Richard McHarg says:

    The idea of by-passing politicians, in creating a Scottish Constitution, is just what we need. We have the difficulty in our country of an imposed ‘British’ establishment; unionist politicians, the newspapers and the BBC, all intent in keeping Scotland in the Union, by continuously telling a politically and constitutionally illiterate population that they are incapable of doing anything without their guiding hand. Give the people the tools, the truth and let them lead the debate. Time to neuter this pointless Union and her toadies with a proper constitution.