Articles of Disunion

Independence day. After months of negotiations, Scotland's formal ties with the UK have been unravelled. Compromises have been made on each side, but overall, both parties are as satisfied as they ever could be with the outcome. A new chapter opens on inter-governmental relationships in these islands, and a refounded, strengthened Scottish Parliament sits for the first time.  But wait one moment. What powers does this new legislature have? And what limits on its powers?

Under devolution, the Scottish Parliament is a creature of statute, created by the Scotland Act, its powers and liberties defined by Westminster. It may be a politically acceptable description to see independence as completing the work of devolution, giving Holyrood power over all of the matters currently reserved to London. But legally? That doesn't work at all.  Independence blows the Scottish devolution system to bits.

You need an interim constitutional platform to take its place. A fact recognised last week by Nicola Sturgeon, who announced that the Scottish Government are working on an temporary constitution, to apply until such time as a permanent constitution can be agreed, and establishing the process for formulating the more permanent fundamental law of the independent Scottish commonwealth. 

Cue some noises off. Isn't this a sinister development? Where does this leave the SNP's protestations that the drafting of the constitution should be participative? What mandate does the Scottish Government have to impose a constitution - even in the interim - on the Scottish people? To my mind, these objections rest on a couple of fundamental misunderstandings. Firstly, we need a provisional basic law to govern the interregnum. We can't do without one, and in some areas, we wouldn't want to.  Secondly, using a broadly participative process to adopt this basic law would be impractical and inappropriate.

For example, what becomes of your fundamental rights between independence day and "constitution day", whenever it falls? As it stands, Acts of the Scottish Parliament can be invalidated if they violate the rights protected by the European Convention on Human Rights, running from the right to be free from torture, to protections for your privacy and freedom of expression. But independence throws the status of the whole Scotland Act scheme into doubt.  If Holyrood were simply to succeed to Westminster's sovereignty north of the border, nothing would prevent the parliament - during the interim period - from ignoring your basic rights.

Similarly, if Scottish Ministers were simply to acquire the powers of their London counterparts before Scotland's permanent basic law was agreed, Alex Salmond would gain the Prime Minister's power unilaterally to declare war under the Royal Prerogative, without reference to parliament.  Politically, this is unlikely to be a goer. In practice, one might expect any Scottish premier to ask the legislature before commencing military action. There is no evidence that the First Minister has dark designs on Berwick, but it is hardly unthinkable that some international conflict involving NATO forces might arise before an impeccably participative process drafts and agrees Scotland's permanent constitution. What then? 

Should we mutely inherit some of the least attractive aspects of the UK constitution for - potentially - a number of years before subjecting them to proper forms of democratic accountability and control? I'd argue not.  An uncontroversial, sober, conservative interim written constitution is essential if these uncertainties and potentially pernicious inheritances are decisively to be avoided.

Ah, but why should the government of the day get to define which rights are fundamental even temporarily? Isn't that unsettling? In the longer run, certainly. And if it looked like the government of the day thought it would chance its arm, and renege on the commitment to drafting a new constitution, I'd join you on the barricades. As the SNP have rightly accepted from the get-go, the constitution does not belong to the governing party and should not be shaped exclusively by its preferences.  But a temporary text? That's a different barrel of herring.

The idea that you use a protracted, difficult and complex process of participation to draft the interim constitution fabulously misses the point.  What would be the point in the second process if the first produced a constitution warranting long-term protection? And what the devil do you do in the interim? To my mind, it would be a terrible idea to try to run the independence negotiations and the planned-for constitutional convention in parallel. 

Having these two conversations in tandem can only confuse, not least because some elements of the constitution will doubtless be informed by whatever deal is cut with the Westminster government. Nor should we assume that the timetables for the two processes will neatly tack onto one another. Far more sensible to adopt a functional, impermanent set of rules in the interim, deferring the wider constitutional debate until such time as you are able to lend it your full attention, without subjecting it to arbitrary deadlines generated entirely by the pressures attending negotiations with the rUK government.

Ah, but wouldn't any interim constitution represent a model, a precedent for the subsequent process - and isn't that unfair, prejudging the issue in precisely the way the Scottish Government committed not to? Isn't this just the SNP trying to smuggle in their own preferences under the guise of an impermanent document, laying down train-tracks which a more participative process can be expected to follow?  

That could be true -- but only up to a point. It remains to be seen to what extent Nicola's text will represent a significant departure from the status quo. There is an obvious tension between insisting that the constitution isn't a matter for the government to determine, while simultaneously attempting to rule the question of whether the Queen should be head of state entirely out of consideration. But thus far, Sturgeon's public remarks on the plans have been masterly exercises in cultivated vagueness. As I understand it, the interim text is still being drafted, and is subject to particularly limited circulation even within the Scottish Government.

The most conservative proposal one might envisage would be an interim constitution which enshrines a unicameral parliament, the monarch as the head of state, still subjecting Holyrood legislation to strong judicial review under the European Convention on Human Rights, and imposing statutory controls on the exercise of the royal prerogative by ministers. A beefed-up Scotland Act, if you like. There might be a temptation for the Scottish Government to include a wider range of their own preferences in this interim document. For example, in addition to ECHR rights, the SNP leadership have indicated that they'd argue for nuclear weapons to be banned, and additional social rights to be written into the permanent constitution, and protected.  

The inclusion of this sort of material in the holding text would be - in my view - wrong, both in principle and in terms of political strategy. We need an interim constitution, to hold parliament and ministers in check, and bring clarity to the distribution of powers among the institutions of the state. Anything else is a recipe for needless legal uncertainty, which is always the handmaiden of litigation. But if the interim text makes it clear that it is no higher law, and can be changed by the subsequent process? I can't see the issue.

Lastly, a word on the process.  Perhaps the most interesting aspect of the Sturgeon story was the confirmation that her draft Bill will "outline the participative and collaborative process by which Scotland, as an independent country, will prepare its permanent written constitution." This is where the waters get choppier. How should the new constitution be formed?

Should we, like the failed post-crash Icelandic constitution, elect individuals to a special drafting group to compose the document? Should we re-form a Calman Max group of "civic Scotland" bigwigs and worthies, the same old faces and organisations, facilitating submissions from the crowd? Might we, like the current Irish Constitutional Convention process, mingle ordinary punters randomly selected from the electoral roll with politicians? Alternatively, should we leave less to chance, and allow folk to put themselves forward for consideration? And who decides?

The White Paper didn't go in for specifics on how the Scottish Government hoped the new constitution should be drafted, beyond that they believe it "should be designed by the people of Scotland, for the people of Scotland," drawn up by an “open, participative and inclusive" process.  That fuzzy formulation covers a multitude of different ways in which the process could be said inclusively to engage the public. It seems this Bill will hope to solidify those ideas, and commit the government to a particular model, which will doubtless provoke its own controversy.  Interesting times in Scotland for the dismal constitutional obsessive. I'm in my element...