December 9, 2013 1 Comment
Last week, Stephen Tierney posted an excellent evaluation of the White Paper released by the Scottish Government on “Scotland’s Future”. In his evaluation, Professor Tierney addresses three issues related to the Government’s repeated commitment to write a constitution should Scotland become independent: 1) when will it be finished? 2) what will be in it? and 3) what process will be used to make it? Much of his post is on the process of writing a Scottish constitution, so I want to make just a couple of additional observations about the likely contents of a Scottish constitution. My remarks are based on a report that I wrote last spring with my collaborators on the Comparative Constitutions Project.
First, very little is likely to change in Scotland as a result of drafting a constitution. As we state in our report:
Almost all countries have institutions that pre-date their entrance into the modern state system and the writing of their first constitution. Regardless of whether a state’s primordial institutions were purely informal rules, as in the earliest states, or colonial structures, they will likely survive in some form. Institutions inevitably favor some individuals’ interests over others, so those who benefit from the presence of some institution have a strong incentive to fight for the continued existence of that institution during constitutional drafting. Factors such as colonial heritage, legal origin, religion, ethnic fractionalization, language, and region are strong predictors of pre-state institutions and, as a result, the content of subsequent constitutional systems. (p. 3)
If Scotland becomes independent, regardless of whether it writes a constitution or not, the institutions established by the Scotland Act (1998) are likely to live on and to maintain the same structure and powers that they have today. As a result, ordinary politics in an independent Scotland are likely to look almost identical to ordinary politics in Scotland today.
I am not suggesting that Scotland should not write a constitution. The act of writing a constitution has value beyond the contents of the document. Writing a constitution can help build legitimacy for the new Scottish state and, depending on the process in which it is drafted and promulgated, may even help to unify the newly independent nation. By establishing a hierarchical system of law, a constitution may even further entrench democracy and the rule of law in Scotland. What I am suggesting is that, regardless of any positive externalities that Scotland might reap from writing a constitution, the contents of that document are largely predetermined.
Second, I am sceptical of the Government’s promise to entrench socioeconomic rights in the Scottish constitution. Socioeconomic rights are easy to promise but hard to deliver. If the Government really intends to deliver on the socioeconomic rights that it has promised, then it should promise to make them justiciable, meaning that the Courts in Scotland will be able to enforce them, and explain how it intends to pay for them. The Government has done neither. As a result, I think it is more likely that there will be socioeconomic rights entrenched in the Scottish constitution but that those rights will be aspirational, giving the Government lots of flexibility when deciding whether or not to adhere to those promises.