A constitution is a serious matter. At its best it embeds values and embodies a nation’s aspirations. The United States in its constitutional commitment to “life, liberty and the pursuit of happiness” sketched the American Dream a century and a half before the phrase was coined. Written well, a constitution passes the test of time too. The US Supreme Court still uses the words of 18th-century men to make decisions on the issues and conflicts of the 21st century.
There’s another kind of constitution. One that mimics the language of freedom, only to mock it. It was Communist East Germany that called itself the Democratic Republic of Germany. In contrast, West Germany called itself the Federal Republic – you don’t have to tell your people they live in a democracy if they actually do.
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The freedom and democracy of Europe have been hard won. Greece, Spain and Portugal freed themselves in the 1970s. Eastern Europe was liberated from Communist oppression in 1989. We thought the days of dodgy regimes with bogus constitutions were long gone. We were wrong.
Before a single vote has been cast in September’s referendum Alex Salmond is up and consulting on what he calls an “Independence Bill” and an “interim constitution”. Let’s look at what that really means
First, the Scottish Parliament cannot pass an Independence Bill. On 19 September, whatever the result of the referendum, the Scotland Act is still in force. Schedule 5, Part 1 says clearly: “The following aspects of the constitution are reserved matters… the Union of the Kingdoms of Scotland and England.” Only the UK parliament can pass a law to break up the country. Only the UK government can lawfully spend taxpayers’ money on drafting such legislation.
So, we have the supreme arrogance of the Scottish Government taking the voters for granted. The sad thing is that it is just par for the course, just another abuse of power. Most voters would just shrug and think: “What would you expect from politicians?”
But go further, read the bill. I know you don’t want to, so I’ve read it for you. It makes some breathtaking decisions on behalf of Scotland. To start with, it abolishes our constitutional monarchy. Sovereignty in the United Kingdom is the Crown-in-Parliament. The draft “independence bill” replaces that with the emetic sentimental emotionalism of “In Scotland, the people are sovereign” – whatever that means. Will there be plebiscites in place of the process of Royal Assent? No. The power of the Crown is being annexed by the Executive – the Scottish Government.
Wait, I hear you cry, what is the role of the Queen in the new Scotland going to be then? She, and her successors, will be Head of State and will apparently “continue to enjoy all the rights, powers and privileges which, according to law, attached to the Crown in Scotland immediately before Independence Day”. Maybe the Scottish people won’t be so sovereign after all.
Actually, it’s pretty certain that the Scottish people won’t be in charge. The European Union would be given an extraordinary control over Scotland by the SNP. The bill states: “Scots law is of no effect so far as it is inconsistent with EU law”. It then adds: “Every person has the rights and fundamental freedoms set out in the European Convention on Human Rights. Scots law is of no effect so far as it is incompatible with those rights and fundamental freedoms.” That, effectively, cedes total sovereignty to the EU. That is as big a change as joining the euro – and would have as large a backlash from the public. Scotland, as the election of a Ukip MEP in May shows, is as eurosceptic as the rest of the UK. Good luck with the subjugation of Scotland to Brussels.
So far, so breathtaking. But the most sweeping decision is yet to come – for me at least, and many others who are Scots. We are to be denied Scottish citizenship. Only those resident in Scotland on the mawkishly titled “Independence Day”, or those born there are entitled to automatic citizenship. Plus the children of those who qualify for citizenship who are born after that day. Perversely, I’ll be able to have an Irish passport through my grandfather from Cork, but not one through my grandfather from Govan.
Now, there are arguments for and against each of these decisions that the Scottish Government have made. But they are not being made openly. They have been assumed. It would be a delicious irony, if it were not so serious, that a document that so sanctimoniously ascribes sovereignty to the Scottish people arrogates so many fundamental decisions to the Scottish Government who drafted the bill and the interim constitution.
This is no small point. We have been discussing independence since 2007 when the National Conversation was launched. This seven-year deliberation is similar in length to the time the Scottish Constitutional Convention took. Getting it right for what would be a newly independent country surely deserves a similar timescale?
There is no urgency for any of this – except the artificial deadlines set by the SNP. We know we should be suspicious when faced with a shifty, polyester-suited salesman pleading with us to sign up for a one-time- only special offer. We should be even more suspicious when people who are asking us to make an irreversible decision on breaking up Britain try to bounce a new constitutional settlement on us at the same time.
There are hosts of other questions that could, and should, be raised about the details. How, for instance, could a constitutionally anti-nuclear country join Nato, which is a nuclear self-defence alliance? But to do that is to get lost in the weeds. The problem is not the content of the consultation, it’s the principle. It’s bad enough that the Scottish Government currently is the plaything of one political party. The “Independence Bill” shows the SNP believe that an independent Scotland should and would be their plaything too.