Draft Constitution Now On Line

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.

Download the .pdf here.

We encourage your responses.

3 Responses to Draft Constitution Now On Line

  1. Richard McHarg says:

    It seems inconceivable that we may one day have something like this to guide our nation.

    Just a few comments:

    Rather than “Kingdom of Scotland”, could we not use “Kingdom of the Scots”?

    In Chapter iv – Parliament, paragraph 16, it mentions “citizens of the republic”. I assume this is a typo.

    In Chapter xiii – Miscellaneous Provisions, paragraph 107, there is no mention of an air force. Is it the author’s opinion that this is incorporated within the army?

    Of course, this is a draft for public comment, and not an actual constitution. On the whole, it is an excellent start, and should be made known to a wider audience.

    I would like to see something about the impartiality of a state broadcaster; with it’s own charter, and an independent monitoring body. The BBC in Scotland, as a so-called state broadcaster, is little more than a veiled-mouthpiece for the Labour Party in Scotland; a situation that cannot be tolerated if we are to reach a goal of greater self-determination. In fact, the BBC is part of the problem.

    Also, I’d like to see an addition to the chapter covering education, chapter 102; that all our school children are taught our own history, the national anthem, good citizenship, and have access, perhaps on school notice boards for example, to the constitution. No point in having a constitution, then hiding it, if we want to engage future generations in how their country is run.

    • admin says:

      Hi,

      Thanks for the comments.

      Chapter 4, §16 is a mistake. Well spotted! We originally prepared two draft Constitutions in parallel. One text provided for the retention of a ceremonial figurehead monarchy, while the other advocated its replacement by a ceremonial figurehead President. There must have been a cut-n-paste error while updating the versions. Apologies. Check out the .pdf on the Resources page for a more thoroughly proof-read text.

      Chapter 13, §107: the short answer is yes. There’s no need for an independent Scotland to maintain the expense and administrative hassle of a three-service military: a two-service military is sufficient. There’s no reason why air assets shouldn’t be pooled or shared between the army and navy.

      State broadcaster: This is a tricky one. An earlier version made provision for a Public Broadcasting Commission, with authority to “supervise public broadcasting according to law, license the airwaves, and make recommendations on the appointment of Governors of the Scottish Broadcasting Corporation” (the Public Broadcasting Commission would act as a regulator, while the Scottish Broadcasting Corporation would be a service supplier, with a constitutional mandate to provide “public-interest programmes of high intellectual and cultural calibre”). The Public Broadcasting Commission was to consist of five Commissioners “recruited by open advertisement and selected on the basis of their merit, experience and integrity”, with selections being shifted by an all-party parliamentary committee for final appointment by the Head of State. The commissioners were to serve for a five year terms, removable only by impeachment, and all those who have “held elective office or been a member of a political party in the last ten years” were excluded from appointment. There are two problems with this approach. Firstly, going into this level of detail makes for a very long and unwieldy Constitution, which can cause the important distinction between enduring, fundamental constitutional principle, and mere administrative / legal detail, to be lost. We wanted to produce a Constitution which was simple, robust, and wouldn’t have to be amended very often. Secondly, there’s a concern that phrases like “supervise public broadcasting according to law” and “public-interest programmes” could squeeze out free speech and diversity, replicating exactly the same cosy clubbery between the media and vested interests that exists today. On a personal level, I’m not advocating an entirely free-market approach to broadcasting. I think the State does have a role in regulating broadcasting behaviour, but perhaps this is better done with a light touch (chiefly as a matter of promoting competition between various sources and preventing monopolisation), and is better handled by ordinary law (under the over-riding principle of freedom of expression) than by constitutional bodies. But I’m open to being convinced otherwise on all of this.

      E.B.

  2. Elspeth Kane says:

    (24) the oath to be taken by new members of parliament – Would like to see this also containing the option, as given elsewhere, to “affirm” rather than swear, so that people whose religious convictions prevent them swearing oaths (eg Quakers/memmbers of Society of Friends) are accommodated.