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Nick McKerrell: A New Scottish Constitution: Who Writes It and What's in It? A Slight Beginning

With the question now agreed for the Referendum, the Scottish Government published a plan on February 5th 2013 for what happens next – that is, between a Yes vote and the declaration of Independence in 2016.  Significantly this outlines the parameters of drawing up a written constitution, a process that will begin post-independence.  How convincing is this (relatively brief) document, and does it get to grips with some central constitutional problems – notably that between the imposition of collective socio-economic rights that represent “values that we hold dear in Scotland” and more traditional individual civil and political citizenship rights?

Some of these issues were signposted in a speech the First Minister gave in January outlining his view of constitutional rights in an independent Scotland.  The media focus was on Salmond’s ideas for constitutional content – notably protecting the right to free education and the right to a house.  But it also raised the prospect of a Constitution being drawn up by a Constitutional Convention to be established by the first Independent Scottish Parliament.  The genesis of this body is unclear, yet the intention of the current Scottish Government would be to be as inclusive as possible: “All parties, and all individuals, will be encouraged to contribute”. 

A 2016 Constitutional Convention?

The Scottish Government plan does not offer much more detail other than elaborating on the organisations that might contribute: “politicians, civic society organisations, business interests, trade unions and others”  (para 1.9).  A number of recent international experiments in constitutional drafting are used in comparison, notably Iceland which had a positive referendum vote on the adoption of a new Constitution in October 2012.  Mention is also made of the Irish Constitutional Convention, the first meeting of which took place in December 2012.

The membership of the proposed convention is not outlined as it is thought that this would be a matter for the Parliament to decide.  Would it be elected independently?  It may be a point only of historical curiosity but one of the reasons that Jim Sillars, then MP for Glasgow Govan, gave for the withdrawal of the SNP from the pre-devolution Constitutional Convention in 1989 was the fact that it was unelected and thus “rigged” (The Guardian, January 31st 1989).

Alternatives to direct election could be the use of Parliamentarians, both from Holyrood and Westminster (i.e., those Scottish MPs elected in 2015 UK General Election), an idea mooted by Barry Winetrobe.  The Icelandic model had 25 directly elected “non-politicians” whereas Ireland adopted the most radical approach of randomly selecting 66 of its 100 members from the electoral register.

More controversial in recent years has been the Egyptian experience, not mentioned in the Scottish Government document.  Initial proposals for amending the constitution in the immediate aftermath of the overthrow of the Mubarek regime in the “Arab Spring” of 2011 came from a committee of legal academics and judges appointed by the army. The more detailed “new” constitution came from a Parliamentary-selected Constituent Assembly which, through a degree of pretty detailed horse trading, had representatives of most groups of Egyptian society.  Yet even though endorsed in a referendum of December 2012, the constitution was criticised as not being in line with people’s wishes. 

Constitutional Rights: Shared Scottish Values?

The make-up of any Constitutional Convention in a future Scotland cannot be separated from the content of the resulting constitution.  One of the central tenets for drawing up a Constitution has to be shared values which represent the consensus in a nation state.  This may be easier in a post-revolutionary setting where the victors wish to make a clear statement differentiating the new society from the past – the American Constitutional Convention of 1787 being the first and obvious example.  However the recent Egyptian experience and the current situation in Tunisia in February 2013 show that where the victors come from different traditions and perspectives it is difficult to agree on the content of a constitution. 

Perhaps if a constitution was purely a technical document on the workings of the state with no reference to values things might be different.  The British Civil Service through the collapse of the British Empire helped various newly independent states to draw up the mechanics of their political system as outlined in their constitutions.  The Indian Constitution of 1949 drew largely on the Government of India Act 1935.  In fact such a “manual” for the United Kingdom Government was published in October 2011 by the Cabinet Office following a request from Gordon Brown prior to the 2010 election.  This is a “record of fact” according to the Prime Minister David Cameron.

Yet such nuts and bolts, whilst vital for any written constitution, are not the stuff of inspiration for a newly independent nation and indeed the Scottish Government document does not even consider what would be in that part of the new Scottish constitutional settlement.  The only mention it makes of constitutional content is in relation to the inclusion of certain individual and collective rights – inspirational perhaps, but definitely more contentious.

As mentioned by Salmond in his January speech, the Scottish Government proposes that certain socio-economic rights should be included in the constitution.  Last week’s document elaborates on these but not by much: the rights should be a “collective expression of the positive values that the people share” (para 1.10).  Mention is made not only of rights to housing and free education but also to healthcare, welfare and pensions.

These constitutional commitments echo the draft constitution proposed by the SNP in 2002 (written by the late Professor Sir Neil MacCormick) and the principles endorsed by the SNP in the same year, although those contained an additional commitment to decent working conditions.

To enshrine such economic rights in a constitution is certainly a brave move in these neo-liberal times, although the draft Icelandic constitution has similar articles.  There is much legal debate about the appropriateness of incorporating such rights in a constitutional document, particularly over the justiciability of what are arguably policy questions concerning the deployment of limited resources.  This was the position taken in December 2012 by the majority of the UK Bill of Rights Commission.

Until now the focus of the Scottish and English legal systems has been on the more individualised civil and political rights contained in the European Convention on Human Rights.  These would obviously also be includedin the constitution but to add to them is contentious.  Unfortunately, the document does not touch on these problems of enforceability or feasibility which are central if the rights are to be robust in the new constitution.

It may also be stretching it to say that there is consensus on these collective rights being open to all in Scotland.  Philosophically those on the right politically may argue that the right to a house is not a collective one and that a constitutional right to welfare should not exist.  Their views may be in a minority in an independent Scotland but does that put them out of the constitutional debate or outwith of “positive values that people share”.

These tensions are sharpened when the additional proposal is made that the Scottish Government would argue for a “constitutional ban on nuclear weapons being based in Scotland”. (para 1.10)  Such an anti-nuclear position may be desirable and shared by millions of Scots but is it a constitutional question?  Are those Scots who argue in favour of nuclear weapons being “unconstitutional”?  Is this elevating a polarised political debate into a legal one?  There is much legal debate on these themes particularly in the sphere of international human rights law but again the document is silent on this.

Shared values are always a bit of a fuzzy area for a society to go into.  One of the reasons that Ireland has established its Constitutional Convention is to look at the values that are currently enshrined in the Constitution of 1937, particularly those religious values that reflected the extensive influence of the Catholic Church at that time.  Incidentally the Irish Convention is explicitly not exploring economic, social and cultural rights to put in the constitution.  Fundamentally, will there be a societal consensus in 2016 which will be sufficient to allow certain rights to be enshrined in a constitution for generations to come?

Given the major shift over the nature of justiciable rights in Scotland and the shifting of certain political questions into the realm of constitutional law it is unfortunate that the document on Scotland’s written constitutional future is so thin.   There are many proposed draft constitutions already in the public domain which could have been drawn upon.

The Constitutional Commission – a Scottish-based charity established in 2005 with the purpose of promoting a written constitution – has a 2013 model constitution.  This shies away from economic rights for citizens, focusing instead on the ECHR model. As already mentioned, the SNP has its own 2002 draft. 

Perhaps the Scottish Government did not want to pre-empt the constitutional debate by delivering such detail.  But avoiding the difficult legal questions surrounding the structure of a convention and the nature of constitutional rights will not help the creation of a robust Scottish Constitution.

Nick McKerrell is a lecturer in law at Glasgow Caledonian University

Actions: Comments (6)


# Jujhar S. Dhanda
14 February 2013 01:49
To the author,

A couple of points about your post regarding Scotland's constitutional future.

First, it is perplexing that you compare the draft Scottish constitution with those drafted and implemented in Egypt, India and Tunisia. It is important to keep in mind the historical, political, legal and revolutionary character of the 'Arab Spring' etc in the drafting and implementation of their respective constitutions (indeed, this is a problem entrenched in comparative constitutional law generally). The vast majority of 'new' constitutions stem from post-authoritarian or undemocratic governments of some sort, and not from countries such as Scotland where it is civic nationalism (as oppose to ethnic nationalism, civil unrest, corruption or violent uprisings) driving constitutional change. Thus, to link MacCormick's draft constitution for Scotland with the constitution's of Egypt, India and Tunisia is perhaps questionable.

Second, the comparison of the Constitutional Commission's proposed 2013 draft is at tension with the democratic nature of the SNP's constitution. Prof. Neil MacCormick's 2002 draft adheres to the SNP ideology and eschews certain values embedded in Scotland as seen by the SNP and, vitally, by their electorate. The draft then is a, prima facie, normative manifestation of the values which the majority of the Scottish electorate feel represents them. The SNP government took a majority of the seats in the last election, something which Scotland's proportional representation electoral system was designed to safeguard against. This numerical defiance underscores the legitimacy of the SNP's draft. To introduce and compare a draft by a charity which does not represent any sort of electorate and is not part of the political process seems a tad undemocratic and is therefore, perhaps, dubious to compare legally (the charity is, of course, free to produce as many drafts as they like). Comparison with the ECHR, the Charter of Fundamental Rights from Canada and the United States constitution makes much more sense, mainly due to the substantive provisions in the 2002 SNP draft (which mirror, inter alia, American constitutionalism – indeed, this is what my current work is on).

Jujhar S. Dhanda
Kennedy Scholar, Harvard Law School

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