A Scottish constitution: should it be devised before or after independence?

If voters choose independence in a referendum, Scotland will need a constitution. Elliot Bulmer argues here that there are advantages to creating and debating a new constitutional document before trying to navigate the choppy waters of becoming a separate nation.

Scotland and a written constitution

Despite being rejected in the 2014 referendum, Scottish independence has not disappeared from the political agenda. With a series of recent polls showing clear majorities in favour of independence, the question is sure to be revisited.

The Scottish National Party (SNP) has long had a policy of adopting a written constitution for Scotland. The party’s substantive proposals have remained remarkably consistent since the publication of a first draft constitution in 1977: a written constitution with an enforceable bill of rights largely based on the European convention, a unicameral parliament elected for fixed terms by proportional representation, and a parliamentary executive operating under a trimmed-down constitutional monarchy. In a nod to Harshan Kumarasingham’s description of India and Ceylon (as it then was) as ‘Eastminsters’, I have previously described the SNP’s constitutional plans for Scotland as a kind of ‘Northminster’ system: a Nordic-wannabe proportional variation of the Westminster Model that is infused by a desire to ‘keep up with the Johansens’, or Westminster-on-Forth, twinned with Oslo.

What has changed since the 1970s is the SNP’s policy on how to reach that desired constitutional outcome: the process and sequencing of constitutional state-building. Down to 2002 at least, little thought was given to process, other than that the draft constitution would in some way be linked to the independence referendum itself: on voting for independence, people would also be voting for the new constitution, which would come into effect on independence day. The constitution would never be debated alone or subject to a separate vote.

This position started to change after the SNP came into government in 2007. In the period running up to the 2014 referendum, the party’s policy appeared to have shifted from one of pre-independence to post-independence constitution-building. Under the independence White Paper, Scotland would have become independent under a skeletal interim constitution – a mere ‘constitutional platform’ – which would have put the lightest constitutional wrapping around existing statutory arrangements. Real constitution-building would take place during the life of the first pre-independence Parliament of Scotland. 

Overseas comparisons

This would be a process not dissimilar to that adopted in India, which became independent in 1947 under the framework of the Government of India Act, and only adopted its constitution three years later. India’s parliament, in the meantime, did double duty as a Constituent Assembly. Such post-independence constitution-building has the advantage of establishing a legitimate national sovereign authority, without interference from a former imperial power. The Indian Constitution was agreed by Indians amongst themselves. From the point of view of a national liberation movement, this offered the ability to devise a truly sovereign constitution, where the Constituent Assembly could be an authentic expression of national identity and pride. 

These arguments clearly appeal to some in the SNP leadership. The idea that a Scottish Constitution should wait until independence is seen as part of a clean break, a chance to remake the constitutional order anew, free from British interference. It is also an electoral tactic: with matters such as the future of the monarchy, church-state relations, socio-economic rights, and localisation of power being contested within the pro-independence camp, there’s an understandable desire to avoid splitting the vote on these constitutional issues. ‘Unite to end the Union first, and we’ll sort out the details of the constitution later’, is an attractive proposition to those concerned to maximise every possible ‘yes’ vote in a future referendum. There is also the apparent advantage of having a free hand, in the period immediately after independence day, for the SNP to remake the state in its own image.

However, building a successful Scottish state is much more than the simple matter of winning a referendum. As Major-General Lionel Dunsterville, commanding British forces in Baku at the time of the Russian Revolution of 1917, observed in his memoirs: ‘It is extremely easy to break down an existing form of government, but to build up anything substantial in its place is a matter of considerable difficulty[….] and a long period of disorder must ensue during which the best efforts of the best men will not suffice to prevent ridiculous situations from arising.’ 

The challenge for the pro-independence side is not only to end the Union, and so throw off the old constitutional order, but to build in its place a system that will enable the new state to govern itself with acceptable legitimacy, stability, inclusion and effectiveness. In the absence of such a constitutional order, situations may arise which are not merely ridiculous, but tragic. This is not only a problem for Scotland, but neither is it a problem from which Scotland is exempt. It is a near-universal risk to which newly-formed states are exposed, especially ones rich in oil and gas resources. 

Post-independence constitution-building increases these risks. While India was a success story, Pakistan’s delayed and interrupted constitutional process provides a warning counterpoint. Pakistan became independent in 1947 without building a consensus around a new constitutional order. It took nearly a decade after independence – until 1956 – for Pakistan to give itself a constitution. In the following decades, it proved difficult to maintain consensus at both elite and mass levels around any constitutional settlement, or even, considering the independence of Bangladesh, to maintain agreement about the boundaries or identity of the state itself. 

Despite the examples of India and Pakistan, pre-independence constitution building became a standard pattern for British decolonisation in the 1960s, 1970s and 1980s. In most cases, this took the form of a Constitutional Conference, often held at Lancaster House in London, in which the main political parties of the country transitioning to independence were brought together. Although the presence of British officials in these constitution-making processes disqualified the pre-independence constitutions from being the work of a sovereign national constituent power alone, they were often genuinely negotiated between the major political parties. As Martin Henry has argued in relation to the constitution of Jamaica, it was not ‘pre-fabricated’ nor merely ‘handed to’ Jamaica by the British colonial authorities, but made by Jamaicans for Jamaicans. The formal approval of the new constitution – either by Act of Parliament or by Order-in-Council was based on national-level political agreement.

Building the Ship in Dry Dock

Jon Elster famously likened constitution-building to ‘rebuilding a ship at sea’. The mega-constitutional politics necessary to legitimate state formation takes place alongside a host of other challenging institution-building or institution-reforming activities. The to-do list is long – spanning everything from issuing passports, adopting a currency, opening embassies, establishing the armed forces, for example, to more general objectives like achieving broad public legitimacy. States facing concomitant demands beyond their capacity to deliver are in danger either of becoming a ‘failed state’ or falling into authoritarianism. One need only compare post-independence Indonesia and Malaysia, or Zimbabwe and Botswana in the 1980s, as pairs of countries in which the presence or absence of consensus on the constitutional order led to different trajectories of institutional consolidation or disintegration.

There is, therefore, a strong case for pre-independence constitution-building in transitions for independence where possible. This could be likened to ‘building a ship in drydock’. The new state, because its constitution has been agreed and adopted in advance, does not have to go through the choppy waters of ‘mega-constitutional politics’ while still navigating through the tricky (economic, institutional, diplomatic) narrows of independence. 

A decolonisation-era ‘Constitutional Conference’ might not map perfectly onto current (or foreseeable) Scottish conditions, not least because of the potentially unhelpful attitude of the UK government and the spoiler role of Unionist parties. Nevertheless, an attempt could be made to develop a draft constitution which at least represents a consensus amongst those who are open to independence. Without wanting to be too prescriptive of the details, a Scottish Constitutional Conference could be established by an Act of the Scottish Parliament, bringing together all the pro-independence parties and such elements of ‘civic Scotland’ as are willing to take part. Such a body might replicate the partial but sufficient consensus achieved around devolution by the Constitutional Convention in the 1990s. The draft constitution agreed by the Conference could then be part of the pledge on which the case for independence is made. If the people then vote for independence, the new Constitution could simply be adopted as a schedule to a future Scotland (Independence) Act passed by the UK Parliament.

The usual consequence of pre-independence constitution-building is that it results in a moderate, even conservative, constitution, transferring rather than transforming power. In Scotland, the opposite danger arises: insufficient inter-elite inclusion, without the presence of conservative Unionist voices, may produce an excessively radical and divisive constitution. To guard against this, the constitution-making body’s statutory terms of reference should be clearly defined, and there should be a strong secretariat to act as a source not only of expert advice, but also of caution and moderation. The Conference should also have a statutory duty to consult with the general public and with civil society. A constitution adopted in this way need not involve major institutional innovation; it could mainly be an exercise in codifying and entrenching – and thereby protecting from unilateral change – the institutions and rights that currently exist in Scotland by statute, with such alterations as may be necessary for an independent state. 

The resulting constitution might look quite similar to a British-derived ‘Westminster Export Model’ constitution, although incorporating reforms already adopted in Scotland under devolution (such as proportional representation, fixed term parliaments, and the formal election of the First Minister by a vote of the parliament). More radical demands might be met by a commitment, hard-wired into the text of the constitution, to future review, once the dust of independence has settled and the institutions of the new state have had time to bed-in. 

This blogpost is a summary of the arguments made in Building the ship in dry dock: The case for pre-independence constitution-building in Scotland, which was originally published in the International Political Science Review.

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About the author

Dr W. Elliot Bulmer is Lecturer in Politics at the University of Dundee and formerly Senior Programme Officer (Constitution Building) at the International Institute for Democracy and Electoral Assistance.

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