The Constitutional Commission broadly welcomes the Scottish Government’s White Paper outlining the options for enhanced self-government.
On 30th November 2009, the Scottish Government published its White Paper, “Your Scotland, Your Voice”, in which it sets forth its proposals for further constitutional change in Scotland.
The White Paper was produced after a long process of consultation, conducted under the umbrella of the National Conversation. Members of the Constitutional Commission were able to meet with Ministers and Civil Servants at various points of the process, and we are pleased to see that several recommendations put to the National Conversation by the Constitutional Commission have been incorporated, explicitly or tacitly, in the White Paper.
The White Paper is also to be welcomed for its full and well-reasoned analysis of the benefits of further reform. It relates constitutional debates to social and economic concerns, firmly rooting the question of Scotland’s future in the “bread n’ butter” politics of “jobs, schools and hospitals”.
The Scottish Government examines the possible advantages of three levels of greater autonomy for Scotland: (i) adopting the proposals of the Calman Commission, (ii) “full devolution”, and (iii) independence. It will take time to digest the White Paper in detail, but the Constitutional Commission’s inital responses to each of these three options are outlined below.
Adopting the Calman Commission’s Recommendations
The consistent position of the Constitutional Commission has been to reject devolution on principle, except as a transitional condition on the road to something more substantial, because it denies the sovereighty of the people of Scotland. As long as the Westminster Parliament retains sovereignty, and retains the right to abolish or curtail the Scottish Parliament at will, then Scotland has no more freedom than a dog on a leash. The leash might be long or short, but it is always held by the powers-that-be in Westminster. For this reason of principle, the Constitutional Commission can regard the Calman proposals as flawed and unsatisfactory.
A partial exception might be made, however, for what the White Paper describes as “full devolution”. Under this arrangement, it seems that the powers of the Scottish Parliament would no longer be “devolved” on loan from a sovereign UK Parliament. Instead, the Scottish Parliament would be able to determine the scope of its own powers in negotiation with the UK Government. This would result in a sort of “federacy” arrangement, similar to the idea of “secure autonomy previously elaborated by the Constitutional Commission. “Full Devolution” hovers in a grey zone between Devolution-Plus and Independence-Lite. It is not clear whether or not the Scottish Government has fully appreciated this, but it would mean an end to the sovereignty of the UK Parliament over Scotland. There would still be a United Kingdom, and there would still be shared UK functions and powers, particularly in relation to defence and foreign affairs, but the singular, unlimited and indivisible sovereignty of the UK Parliament would be broken.
The Constitutional Commission regards the creation of an independent Scottish State, if this is supported by the majority of the people voting in a referendum, as fully compatible with its principle of popular sovereignty. The Constitutional Commission is pleased to see that the White Paper dispassionately assesses the costs and benefits of independence so that the people can make an informed choice.
However, the Constitutional Commission is deeply troubled that the commitment made in the SNP’s 2002 constitutional policy paper “A Free Scotland” has been watered down, perhaps indicating either a misunderstanding of, or withdrawal from, the principle of sovereignty of the people.
The 2002 constitutional policy paper stated:
“In line with practically every other country in the world, an independent Scotland will have a written constitution. A written constitution is necessary to protect the rights of every Scottish citizen and to place restrictions on what politicians can and can’t do. A written constitution for a free Scotland provides us with an opportunity to enshrine fundamental human rights in Scotland’s basic law and ensure a government truly accountable to the people of Scotland.”
The recent White Paper, however, says only this:
“An independent Scotland could consider further progress, for example… …formulating and agreeing a fully codified and written constitution. These issues would be decided within Scotland, either by the Scottish Parliament, or, as at the moment for major constitutional change, through a referendum.”
The Constitutional Commission regards the transfer of power from a sovereign Westminster Parliament to a sovereign Holyrood Parliament as wholly unacceptable. The principle on which we are established is that of the Declaration of Arbroath – that sovereignty rests in the “whole community of the realm”, in the people, not Parliament.
Sovereignty of the people means there must be a written Constitution, superior to ordinary law, which can only be adopted and amended by the people. The Irish and the Danes have got that right – so why not us?
As the Constitutional Commission has consistently maintained, the freedom of Scotland requires both more and less than independence: it is possible for the people of Scotland to enjoy democratic freedom whilst sharing powers with the rest of the UK, and it is possible for an independent Scotland to exist without necessarily guaranteeing our freedom.
We therefore ask the SNP and the Scottish Government to reaffirm their commitment to the sovereignty of the people – not their representatives – and to the establishment of a modern, written, liberal-democratic Constitution, modelled on the best examples from other small European countries.