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.
Last week the Scottish Government published the Scottish Independence Bill outlining the constitutional arrangements for an independent Scotland. Iain McLean explores the significance of the new emphasis on ‘people’s sovereignty’ and considers the strengths and weaknesses of the draft interim constitution.
Where the Scottish Government’s independence manifesto Scotland’s Future was long and evasive, the Scottish Independence Bill and accompanying notes published on June 16 are short and to the point. This is the best document on independence yet released by the Scottish Government. The bill, which the Scottish Government proposes as the first draft constitution should Scots vote Yes in September, is no longer than that masterpiece of Enlightenment lucidity, the Constitution of the USA. It also shares a deep intellectual history with the US Constitution and Bill of Rights.
The bill opens with ‘In Scotland, the people are sovereign’ (cl. 2). It thus junks parliamentary sovereignty. The Explanatory Notes make obeisance to the Declaration of Arbroath (1320) and the Claim of Right Act 1689. However, this is really the work of the late Lord President Cooper (MacCormick v. Lord Advocate 1953 SC 396 at 411), and the late Neil MacCormick, son of the 1953 petitioner. Lord Cooper was responsible for destroying the intellectual coherence of parliamentary sovereignty and Sir Neil drew the attention of his SNP colleagues (and everybody else) to the importance of that. The UK’s leading jurist of his generation, he was an SNP MEP and drafted an earlier Scottish constitution for the party.