WHEREAS other modern democracies have simple codified documents which enshrine fundamental principles, a study of the many, many articles which incorporate the UK’s loose “constitution” show it to be opaque, unwieldy, and largely impenetrable to lay people.
Furthermore, the power of the UK state is derived from the Crown, whose powers are real and not merely ceremonial. In a modern democracy, this is archaic.
Yet if Scotland becomes independent in 2016 we will no longer be governed by a state without a codified constitution,. Instead, we will be a country with the opportunity to craft a forward-thinking, modern constitution by the people, creating sovereignty of the people and protecting their rights.
I am, however, inclined to agree with Alexander Hamilton, one of the founding fathers of the United States of America who opined: “Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.”
Despite the period and circumstances which informed his opinion, his remarks shows remarkable prescience and stand the test of time and scrutiny. Constitutions are documents of democracy, not manifestoes or policy wish lists, but a set of fundamental principles according to which a state (or other organisation) is governed and underpinned by law. A constitution is not a document of ideology representative of the policies of any transient period in a state’s political passage.
To hear any future constitution discussed in terms of policy instead of legality is concerning. There is a difference between enshrining equality legislation in a constitution and making a political case for certain standards of living based on a reasonable test skewed in favour of the priorities of the proposer. It is also imperative that constructing a constitution should be a collaborative process which does not alienate people who may not be in the room yet. It should be a democratising process which affirms sovereignty to the people and which provides the space within which a government can act but is prevented from egregious behaviour. It should not be more than this.
In 1944 Franklin D Roosevelt proposed a second Bill of Rights for the US, on the basis that the initial Bill of Rights and the American Constitution drawn up by the founding fathers were inadequate. His reformed Bill of Rights contained some of the type of suggestions which are being mooted for inclusion in a potential constitution for Scotland. The language used by Roosevent and ideas proposed are remarkably similar, almost as if the text of his impressively forward-thinking State of Union address to the US Congress is informing current Scottish debate. However, his admirable recommendations about access to education, a home, healthcare and a living wage did not make it in to law, and this should provide a cautionary tale to those who want to embed constitutional rights around policy. Despite being a three-term and popular president with the full apparatus of war-time government behind him, Roosevelt could not pass his proposed bill.
After 1979, the Scottish Constitutional Convention was very active in shaping the ideas and principles which provided much of the framework for the Scotland Act 1998. It is striking that despite the work which has been undertaken at the behest of politicians since devolution – for instance, the Calman Commission – looking at the powers of the Scottish Parliament, there is a vacuum of input or collaborative examination by civic Scotland. It is possible to make many arguments as to why this is: that devolution is still young; that the timing or reality of an independence referendum took people by surprise; that many people and organisations are reluctant to pre-empt the result of the referendum or be seen to or because they cannot see an angle for blatant self-interest. Given that there is an irrefutably large appetite for more powers for the Scottish Parliament, even if that stops short of full independence, it is not inconceivable or undesirable that there is a second constitutional convention, prior to the referendum, which looks at more powers or considers a potential future constitution. To see civic Scotland be proactive instead of dragging its collective heels on this would be desirable.
Ireland voted to adopt a constitution in 1937 which has been their framework of governance since, but has now embarked on a period of reflection and examination of that document to make it fit for purpose in the 21st century. There are definite lessons, best practices and cautionary pitfalls which Scotland can use to inform on the reality of incorporating the regulation of the state in to law or to amending it.
The Irish constitutional convention comprised two-thirds of randomly selected members of the public and one-third elected members nominated by their parties has allowed ordinary voices extraordinary power to make recommendations about their future. Whilst any amendments require the ratification by referendum, clearly this is a collaborative process; and despite the convention examining certain areas of the constitution, like equality of representation or the franchise, they have the power to make further recommendations where they see fit.
The Irish model is just one of many examples of attempts to improve representative democracy across the world. We might not know exactly where we are going next year, but if we do vote Yes, we know that we will have our own opportunity.