Should Scotland vote yes next September the legislation on independence would place a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention to prepare a permanent written constitution for Scotland (Scottish Government, Scotland’s Future: Your Guide to an Independent Scotland: p 332). There is understandable interest in what that constitution might say and how it might be made. Would it, for example, guarantee social and economic rights as well as political rights?  Would it ban nuclear weapons on Scottish soil? Would it be subject to approval by the Scottish Parliament alone or would it also require the approval of the people in a referendum? These are all important questions. But there is another set of questions which are no less deserving of consideration as we consider Scotland’s constitutional future. What would be replaced by an independent Scotland’s permanent written constitution, and how would what it replaced be made? The plain fact is that Scotland would have a constitution from day 1 of independence – as indeed it has a constitution now. It is a matter of some interest therefore what that interim constitution would say -  and indeed how it would be made -  and how if at all it would differ from the constitution we have now.

Leaving aside the fact that is a written constitution, a work of ‘conscious art’ rather the result of ‘natural growth’, Scotland’s current constitution has three features which set it apart from the United Kingdom constitution – which perhaps not unsurprisingly provides the sole point of comparison for the purpose of Scotland’s Future’s discussion of our constitutional arrangements. First, it is ‘entrenched’, by which is meant simply that the Scottish Parliament cannot amend it. As things stand at present it can only be amended by the Westminster Parliament, and then only with the agreement of the Scottish Parliament, as we saw with the Scotland Act 2012. The sovereignty of the Westminster Parliament, in other words, is not quite as ‘absolute’ as Scotland’s Future would have us believe (pp 334-335). Second, fundamental rights are ‘built into’ the constitution rather than set out in a separate Act of Parliament which may be amended by ordinary process of legislation. And finally it is judicially enforceable. Should the Scottish Parliament ignore the limits on its competence the courts have the power to strike down its legislation as unconstitutional, which they have done on three occasions since devolution.

What then would be the position on independence? For a document that purports to provide ‘all the answers’, Scotland’s Future is decidedly thin in places. What we are told is that the ‘founding legislation’ of an independent Scotland would be provided by combination of a ‘constitutional platform’ and a ‘refreshed’ Scotland Act (pp 340-341). Like the referendum itself, the constitutional platform would be ‘made in Scotland’. Under it the Scottish Parliament would have the power to declare independence. It would also have the power to provide for the ‘continuity of laws’: all current laws, whether in currently devolved or reserved areas, would continue in force after independence day until they were specifically changed by the independent Scottish Parliament: 340-341. The Scotland Act, which provides the foundation of the Scottish Parliament and Scottish government, would also be ‘refreshed’ in Scotland. 

Would then the Scottish Parliament elected in May 2016 be able to amend the ‘founding legislation’ as it stands on day 1 of independence? Scotland’s Future states that the founding legislation of an independent Scotland ‘will not be subject to significant alteration pending the preparation of a permanent constitution by the constitutional convention’ (pp 340-341). But whether, like some other elements of the White Paper, this is simply a statement of confident expectation – we don’t anticipate that it will change much – or a signal that there will be barriers to its amendment pending the preparation and adoption of a permanent constitution is not made clear. Clearly, though, there is a world of difference between a constitution which may be freely amended, but which we don’t expect to be much amended, and a constitution with significant barriers to its amendment pending the preparation and entry into force of a permanent constitution.

What then of fundamental rights? The intention is that they should continue to be protected as they are at present. Their protection would therefore be divided between the refreshed Scotland Act, which would continue to apply to the Scottish Parliament and the Scottish government as now, and the Human Rights Act which would apply to those elements of the government of Scotland the Scotland Act does not reach. The Scottish Parliament and the Scottish government would therefore have ‘no power’ to act incompatibly with Convention rights, while it would continue to be ‘unlawful’ for other public bodies including the courts to act incompatibly with the Convention rights.

As to whether the Scotland Act, as one of principal sources of the obligation to act compatibly with the Convention rights, and the Human Rights Act would be entrenched as they are at present, we are told that the Scottish government is committed to maintaining at least the equality and human rights safeguards available under existing UK and Scottish legislation, and that if Westminster made changes before independence which reduced such safeguards and protections - a reference to the fact that senior ministers in the current Westminster Government are supposed to favour ‘abolition’ of the  Human Rights Act -  the current Government would take ‘early action’ to reinstate them (Q 613). But that does not quite answer the question.

And then, finally, what would be the position with regard to judicial enforcement? At present if the Scottish Parliament exceeds the limits on its competence the courts can strike down its legislation as unlawful. Insofar as there are limits on its powers, including the Convention rights, that would presumably continue to be the case after independence, but would the final say belong to Scotland’s Supreme Court or would it be open to the Scottish Parliament to amend the founding legislation in response to a judicial decision which was not to its liking – a Somerville or a Cadder, say? Again there is no answer.

It is of course readily understandable that the Scottish government should choose to emphasise the attractions of an independent Scotland’s ‘permanent written constitution’, even if one may hesitate at its caricature of the United Kingdom constitution as one based on the ‘absolute’ sovereignty of the Westminster Parliament. But by saying so little about the ‘founding legislation’ of an independent Scotland, the government might be thought to be saying that it is of little real consequence – what matters is to make it to the permanent written constitution not what lies in between – when in truth the founding legislation, which would be put in place by the current SNP-dominated Parliament in the eighteen months between a yes vote in September 2014 and independence day in March 2016,  would be the constitution of an independent Scotland until such time as it was substituted by the fruits of the constitutional convention’s labours. Questions about the status of the founding legislation, the protection of fundamental rights, and the relationship between the Scottish Parliament and Scotland’s Supreme Court are therefore of no less relevance to  the founding legislation than they would be to its replacement. It would no doubt be entirely mistaken to suggest the Scottish government would prefer not to discuss these questions, or not now at least, but they are no less deserving of consideration and answer now than they would be after a possible yes vote next September.

Alan Page is Professor of Public Law at the University of Dundee