A constitution does not mean a government which happens to have a parliamentary majority can pass any law it likes, writes Michael Fry
THINGS are getting serious, then, with the gap in the polls between No and Yes closing and the government of Scotland flexing its muscles as if it were actually in charge of the country rather than engaged in the extended play-acting of devolution.
On the latter point, the newest development is the promise by Nicola Sturgeon to publish this summer an interim constitution under which the country could be ruled after 18 September, as a preparation for full independence and a real constitution from 2016. This cautious foreshadowing is in itself a positive turn of events. There are, after all, certain of her colleagues who would have given us an instant, knee-jerk constitution guaranteeing four taps for every Scottish sink: hot, cold, oil and whisky.
We should be glad of the pause for thought because the SNP’s constitutional thinking has so far been crude. In some respects it has been frightening. The prime example is the bullying of the judiciary by the justice secretary, Kenny MacAskill, over its refusal to acquiesce in his proposal to abolish the hallowed rule of corroboration in Scots law. In most systems of constitutional government this sort of behaviour would be impossible if not outrageous, because such systems guarantee the independence of the judiciary. In them, indeed, MacAskill might now be facing impeachment for abuse of his power.
How is that a politician I have always found intelligent, if not compassionate, in the exercise of his office has turned himself in this affair into a tyrant? Committed nationalist though he is, he seems to me to remain in one respect British in every fibre. He believes in the absolute sovereignty of parliament, which is a British concept.
It means none of us ordinary citizens has any inherent rights, only those granted to us by the grace of the sovereign. This grace has been transferred in modern times to the executive branch of government sitting in the parliament at Westminster and so by devolution to the parliament at Holyrood. But power devolved is power retained: the absolutism remains intact.
It is not hard to recall some recent practical examples of such absolutism.
It brought us the poll tax imposed on the people of Scotland against their will. It brought us laws against terrorism which imprisoned some wholly innocent people. It brought us promises of referendums on Europe afterwards repudiated. It brought us war in Iraq and effective immunity for the leaders who broke international law to wage that war, together with the suicide of a scientist capable of exposing them. It brings us, and is still bringing us, official surveillance of daily life in ever more detail.
You might counter that these are all instances of British, not of Scottish, absolutism. But that is precisely the point. I am going to vote Yes in September because I want rid of a decrepit UK with its hopelessly outdated politics, especially its ridiculous pretensions to be a great power and its subjection of internal freedoms to those external delusions.
On 18 September we have a chance that seldom comes the way of any nation, the chance to make a completely fresh start. But not if we allow the vices of the old Britain to carry over into and corrupt from its birth the potential virtues of the new Scotland.
I think we all agree that sovereignty in the new Scotland will reside in the people. But what that people needs is a constitution setting limits to its own power. The people do elect dictators: they have done it in Germany, France, Italy. If we look at the other neighbours whose politics we most admire, such as the Scandinavian countries, we see they therefore set limits to what the people can do.
An authority on Denmark says this: “The constitution is based on the separation of powers into the three branches of government, the legislative, the executive and the judicial branches. The constitution is heavily influenced by the French philosopher Montesquieu, whose separation of powers was aimed at achieving mutual monitoring of each of the branches of government.”
An authority on Norway says this: “The principle of separation of powers between the executive, legislative and judicial branches was directly inspired by the radical ideas from the US and French systems. The retention of a king and a constitutional church in the face of republicanism was a traditionalist move, however.”
If we look at a recent example of a nation that broke away from a clapped-out empire, then here is the Czech Republic, a most interesting and possibly relevant example to us.
The constitution “postulates the sovereignty of the people, and the division of government into executive power, legislative power and judicial power. The sovereignty of the people is not a legal principle, but a political principle – it means that it is the people, who have the right to create the system of values, institutions, and procedures, through which the state is governed.”
But it does not mean an unfettered power for any government which happens to have a parliamentary majority from the people to pass any law it likes.
That last is what we could in Scotland call the MacAskill principle. He might think it fine for an SNP government, but would he think the same for a Labour government? Or a Tory government?
That is why making a constitution is a serious business, not a matter of populist gesture.