An interim constitution?

 

COMMENT: Kenneth Fleming

 

Yesterday, the Deputy First Minister, Nicola Sturgeon announced plans that a draft Scottish Independence Bill will be published before the Scottish Parliament’s summer recess, as part of her Wales Governance Centre Annual Lecture delivered in Cardiff.

The accompanying Scottish Government news release contained these passages:

“It would form the interim written constitution for Scotland until the constitutional convention, which would be established by the Scottish Parliament elected in May 2016, prepared a permanent constitution for Scotland.”

And:

“As First Minister Alex Salmond outlined last year, that constitutional convention will involve input from a wide cross-section of civic Scotland, articulating the nation’s values and enshrining them in a permanent written constitution.”

So far, so confusing, so worrying.

I’m not exactly clear what this will interim constitution will do. Will it purely operate in an interim capacity, or it will also be used as a draft document for the constitutional convention to consider? Now I could wait until the full details of these proposals are unveiled, or I could type a potentially ignorant and ill-judged ranty blog. Well here we go…

In all seriousness, even an interim constitution even intended for a short term transitory period is profoundly worrying. In her speech, the Deputy First Minster said that:

“It is a cornerstone of Scottish democracy that sovereignty rests with the people.”

Well indeed. This is precisely why we should be alarmed that any one particular political party should be allowed to draft a constitution, of any type, regardless of whether it is has the word interim in front of it. It is also far from clear where the legitimate authority to do so is being derived. I’m not a legal expert, so I cannot definitively say that the Edinburgh Agreement does not grant the Scottish Government the authority to do so after a successful Yes vote, but I have my doubts. As I understand it, the current devolved Parliament was given the opportunity to ask if we wished to reform our constitutional framework, not automatically build a new one following a positive result. And as anyone acquainted with the difficulties of the Icelandic Constitution will know, the integrity of the process itself matters.

I also have concerns about the robustness of any purely interim constitution drafted in this way. If it is intended to be so limited that it does not impinge on the work on the constitutional convention, will it in fact be detailed enough to withstand either legal challenges or actual democratic stresses? In terms of the latter, I recognise that a coup attempt following a yes vote is extremely unlikely. This then sort of begs the question of whether an interim constitution is needed at all. We are going to be inheriting all manner of UK laws to be reformed over time anyway and there is of course UK constitutional law, it is just not codified in a single document.

My fundamental issue however, is how it would impact on the constitutional convention itself. Even if it is not intended to be used to inform those discussions, can it realistically not have a significant influence? To have a convention that is genuinely open and driven from the ground up, means the process needs to start with a genuinely blank sheet of paper, not a canvas with the pencil markings of the interim document rubbed out. Regardless of whether it intended to do so, any interim constitution runs the risk of prejudicing and impairing the entire process to draft a permanent text.

And that constitutional convention would matter.

If we do vote for independence in September then there will be work to do to heal the wounds of what has been at points a regretfully bitter and divisive debate. I say this as someone who cares more about what Scotland we build in the future, than the constitutional framework we build it on. A genuinely open citizen’s consultation would be a hugely important tool in bringing this new Scotland together. However, it cannot perform that role, if either the reality or the perception is that the rules of the game have been defined by a small number of strategists and lawyers playing for just one team. We would need an accessible and transparent process for defining the values and priorities for Scotland’s constitution, and that cannot happen if Scotland’s civic society feel like they are working from someone else’s first draft.

I want to be clear that I do not think there is any deliberate mendacity on the part of the Deputy First Minister or anyone else in the Scottish Government for that matter. I am certain that the Deputy First Minister is sincere in her desire to address what she considers to be Scotland’s democratic deficit in lacking a written constitution. However, if the first principles and first steps of an independent Scotland’s constitutional journey are compromised by an association with a set of vested interests, then it will not alleviate this deficit, it will enshrine it.