While the Constitutional Commission takes the view that any constitutional settlement is for the people of Scotland to decide, we think it is important to help examine what form any such settlement may take. To this end a Draft Constitution for an independent Scotland is now available on-line for viewing and comment. Take part in a conversation to help shape Scotland’s constitutional future and improve our democracy
Note: The purpose of this page is to discuss the Draft Constitution and the constitutional structure of Scotland in the event of independence. It may be worth repeating that the Constitutional Commission, while acknowledging the sovereignty of the people as the source of all political authority, does not take a collective view on the desirability, or otherwise, of independence. Please see also the proposal for “Secure Autonomy” within the UK.
INTRODUCTORY NOTE: DESIGNING A CIVIC CONSTITUTION
The “constitutional” debate in Scotland has focused mainly on the relationship between Scotland and the rest of the United Kingdom. Little thought has so far been given to the design of a future Scottish Constitution in the event of a “Yes” vote in a referendum on independence. Perhaps there is a sense, amongst those advocating independence, that these constitutional problems will resolve themselves after the question of independence has been settled.
If independence happens, however, there will be many practical problems to deal with, and good constitutional design is likely to be forgotten in the rush to set up embassies and post offices. The time to think about constitutional matters is now, ahead of any referendum. Otherwise, we could easily end up achieving independence, but not achieving well-constitued liberal-democratic freedom: and, as the history of twentieth century decolonisation teaches us, these two are not synonymous. If Scotland does become independent, surely people of good will from all parties and none will want Scotland to be a successful liberal-democracy, like Ireland or Finland, not a troubled State like Zimbabwe or Pakistan. Part of the key to that success is getting the Constitution right.
Most countries which became independent from the United Kingdom in the last 50 years were given an off-the-shelf Constitution of dubious quality produced by the old Colonial Office. These tended to replicate in miniature the faults of the Westminster system – namely, excessive concentration of power in the hands of the Prime Minister and a lack of checking and balancing institutions. To become independent under such a Constitution would be a disaster: it would merely transfer power from an irresponsible Prime Minister in London to an irresponsible Prime Minister in Edinburgh. Scotland must, at all costs, avoid making this mistake.
The basic outlines of a suitable Scottish Constitution are quite clear. Following on from the Scotland Act, the Claim of Right, and the proposals of the Scottish Consultative Steering Group, an independent Scotland would be a parliamentary democracy, with a Parliament elected by proportional representation for fixed terms, an executive elected by and accountable to parliament, a ceremonial head of state, an independent judiciary, and a written Constitution with an enforceable liberal Bill of Rights. All this, in the words of the late Prof. Neil MacCormick, is part of the “common stock of democratic thought in Scotland today”.
Nevertheless, these basic outlines leave many questions of detail unanswered in the event of Scotland becoming independent and seeking to establish a Constitution. Informed public debate on these questions will help to develop a “Civic Constitution” which serves the aspirations of the people of Scotland for a better quality of democracy, rather than a “Civil Servants’ Constitution” which replicates in minature all the secrecy and unaccountability of the Westminster system.
That’s why the Constitutional Commission has produced a Draft Constitution for Scotland. It is intended to give some precise institutional shape – in the event of independence – to the principles of LIBERTY, EQUALITY, DEMOCRACY, ACCOUNTABILITY, PARTICIPATION, CO-OPERATION and SUSTAINABILITY unanimously agreed by the Constitutional Commission. Our hope is to advance the quality of constitutional design in Scotland by showing that viable and attractive alternatives to the Westminster model exist.
The Draft Constitution has been developed over several years in association with comparative political scientists drawing on countries such as Ireland, Iceland, Malta, Sweden, Denmark and Belgium, and it represents our attempt to balance what is known to be “good” with what is thought to be practical. In terms of specific content, the proposed Constitution builds on the general principles of the SNP’s 2002 draft Constitution and draws from a text first produced in the 1960s and published by Robbie Moffat in 1993, but it also incorporates advances in comparative politics and comparative constitutional law to provide for a better quality of democracy.
This is not a final or definitive statement of our constitutional policy, nor is it an attempt to produce an “ideal” Constitution. Rather, it is designed to show what a good Constitution for an independent Scotland might look like, based on Scotland’s developing constitutional tradition and the best practices of other small European liberal-democracies.
We encourage your responses.