Who are "we the people"?

Who are “we the people”? It is traditional to begin constitutional tracts with that kind of question. During the early phases of the French revolution, the Abbé Sieyès– the “mole of the revolution,” who had the bad grace stubbornly to survive the whole thing – asked his fellow citizens, “what is the third estate?” 

The body formed one third of the Estates General summoned in 1789 by the ill-fated Louis XVI, along with the nobility and the clergy. But who were these “commoners"? And what did they represent? The delegates didn’t hold their places by dint of clerical office, or on the back of an inherited dignity won by their ancestors through legalised brigandage. 

They were a motley crew of provincial lawyers and wine merchants, some broken down aristos, philosophers, hacks, mad physicians, speculators, chancers, worthies and unworthies. That the Third Estate evolved to see itself as representing a national assembly and the sovereign will of The People is well known: a growing self-consciousness which pitched several pillars of the old dispensation into their graves. 

An independent Scotland faces a rather different conjunction. Our political tumult doesn’t result from dethroning a reactionary sovereign – we’re keeping ours. By the other dimensions of the constitution are up for grabs after a Yes vote, with an emerging consensus that any constitution should be a matter for "the people" to decide. The Deputy First Minister expressed the orthodox Nationalist constitutional discourse clearly in her Edinburgh speech this week:

"... the process of creating the constitution – the engagement by the people in it – will be as important in many ways as its contents. Because the constitution of a country defines who makes decisions on behalf of its people and how the people choose those decision-makers and influence their decisions. The constitution should also set out the aspirations we have for our country and our vision for the future."

"As I have said, the constitution is the basis of everyday life, not separate from it. So the written constitution should be designed by the people of Scotland, for the people of Scotland. The process must be participative and collaborative to reflect that the people – not politicians or state institutions - are the sovereign authority in Scotland."

But who are “we the people”? In 1787, a convention of wealthy, white, bourgeois men in Philadelphia happily and apparently unselfconsciously appropriated the term in the preamble to the Constitution of the United States of America. Needless to say, this assembly of The People left great swathes of the people unrepresented. Reading the Scottish Government's draft interim constitution, put out for consultation this week, and Nicola's speech at the university of Edinburgh, I was struck again by the importance - and the continuing vagueness - of our thinking about the constitutive role of the people, and more practically, how we wish to see this expressed after a Yes vote.

The concept of "the people" features in a couple of ways in this week’s draft interim constitution. In section 2, their sovereignty is asserted:

"All state power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people" (s.3(2))

The people put in a second appearance in section 33, which provides that:

"The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland."

The Bill also provides that this Convention will not be subject to control by ministers and parliamentarians, though it envisages that the Scottish Parliament will lay out provision on its membership, budget, timetables, procedures - and critically, the rules governing "the procedure by which the constitution" prepared by this body "is to be agreed by or on behalf of the people."

A few things to notice about this. Firstly, the Bill envisages that that process of writing Scotland's permanent constitution will only begin after independence is fully established. It will not run in tandem with the negotiations to break up Britain, divide assets and agree terms of continuing cooperation with what remains of the United Kingdom. Secondly, the Bill kicks the can down the road and leaves key questions unanswered. The idea of a constitution being drafted "by the people" does not speak for itself. Even the language of a Convention is inscrutable, potentially compatible with any range of configurations in terms of membership and remit. Nor do the international parallels all speak with one voice. "The People" look different in different places.

As I have written before on this topic, the recent Irish Constitutional Convention, reconsidering the Republic's basic law, consists of a mixed body of politicians and citizens. Chaired by Tom Arnold, the rest of the Convention is populated by 33 parliamentarians, and 66 randomly selected, "broadly representative" ordinary citizens. In Iceland, by contrast, 25 individuals were elected by special ballot, to form the convention which drafted their abortive "crowdsourced" constitution.

Our own recent history expresses a different conception of a convention altogether, with the Scottish Constitutional Convention forming around political parties, a selection of civic organisations, churches and the like - with few of The People having any say about who was, and was not, sitting around the table.  All three conventions comfortably use and used the language of expressing the popular will, but their compositions couldn't be more different.

The language of the draft Bill suggests that the Scottish government wish to exclude national parliamentarians from membership altogether, but even then - that doesn't answer all of the questions about who "the People" who compose this constitution might be, how many of them are delegated, and how individuals will selected to serve.

Should selecting to the Convention be randomised, selected for on the basis of particular characteristics? Teaching constitutional law to my first years in Strathclyde last term, this idea was met with considerable antipathy by my students, but it has been employed elsewhere - including in the Canadian citizens assemblies, which considered the advantages and disadvantages of different electoral systems for the province.

And there is a certain force to the argument that if an ordinary punter can send a man to jail for life, then they are well capable of framing the basic law of the country, with the proper resources and advice. For others, of course, this merely underlines the folly and terrors of trial by jury - and the perils of leaving constitutional drafting in the paws of potentially disengaged, ignorant or indifferent fellow citizens. Several folk find serving on criminal trials a chore - why inflict boredom on the uninterested when you have tragic obsessives like me, champing at the bit to get involved?

And what is so splendid about randomised selection anyway? What special legitimacy does the disengaged individual have over the active and interested citizen? We're hearing this kind of patter quite a bit in the independence debate on all sides. "I'm not involved in politics, I'm not interested in politics" a Better Together activist said to me on Sauchiehall street the other day, as if it made his arguments more respectable and convincing.

In her now-notorious remarks at a recent No campaign event, Clare Lally harped on the same string, representing herself as an "ordinary mother," as if that invested her opinion with greater weight than a more politically-active "ordinary mother" like Johann Lamont, or Angela Constance. You hear the same on the Yes side. While there are plenty of reasons to be cynical about the state of our politics, I'm profoundly suspicious of anybody, whatever their views, smuggling in their ideology under the guileless mantle of being plain, ordinary and common sense. The constitution is essentially a political document.  The process for its formulation ought to reflect that.

So perhaps folk should be obliged to put themselves forward to participate, rather than leaving things to random chance? But then, who decides from these would-be active citizens? Fortune? Election? A sprinkle of both, in a multi-member convention? Or will we have an all-too-worthy rerun of the 1990s, with all the usual suspects in place? Heaven forfend. If there's a lesson in all of this, it is that we should be suspicious of the malleability of the discourse of "the People."

In one sense, the vagueness of Nicola's draft Bill on this point is no bad thing. The air having cleared after September's poll, the negotiations for independence having been largely completed, the new Scottish Parliament can apply itself to these questions - and potentially incorporate concrete proposals on the shape of the Convention in their election manifestos of that year. The Bill doesn't try to stitch up these issues now, prematurely. But it is critical to recognise that the breathless, rhetorical language of a constitution of the people, written by the people, for the people - leaves a very great deal unanswered and undecided.

So who are “we the people”? It seems we'll have to wait until 2016 to find out.

Our Constitutional Imagination #1: The Mission

The idea has taken on a quiet sort of momentum. Unheralded, it has become the constitutional common sense. An independent Scotland would have a written constitution, a unicameral parliament elected on a proportional basis, an extensive list of entrenched constitutional rights, including social and economic rights, and strong judicial review of primary legislation, giving judges the power to strike down laws which violate fundamental rights in court. At the periphery, places like Orkney and Shetland might be given more extensive powers of self government, but little in the way of systematic thought has been given to the sorts of government structures which the rest of the country should have, beneath the national level.  

We're racing ahead of ourselves, prematurely closing what should be a more open, imaginative conversation. We know that the Scottish Government propose that a constitutional convention with some sort of populist flavour should be charged with drafting the text.  But how can the people and their representatives make a real choice about the constitution they want, without a sense of the options and the alternatives? I worry that we're being drawn, unwittingly and to little advantage, into a vortex of conservatism, and a constitutional vision for the new state amounting to little more than the Scotland Act plus.

When it comes to the parliament, what are the key advantages and disadvantages of not having a second revising chamber? What benefits might we be forgoing if we carry on without one? What different international models might be borrow from and adapt to our circumstances? The Scottish Government propose to make the Court of Session and High Court of Justiciary collectively our supreme court. Why not consider creating a new apex court, or a distinct constitutional court like other countries elsewhere? What are the arguments on either side? The ability to vindicate your basic rights in court has obvious attractions. But what are the potential downsides and ambivalences?

And beneath the current constitutional consensus, there lurk a whole raft of potential conundrums and disunities. A proportionately-elected parliament, perhaps. But is the current electoral system the best? Against what criteria should the alternatives be evaluated? For example, the additional member system maintains a constituency link, but the d'Hondt method for allocating seats and the current regional structure favours larger parties. Should an independent Scotland fiddle with the system? We might, for example, extend the use of STV from our local to national elections. But that too will involve some compromises, privileging one set of values and principles over others. 

We owe it to ourselves, to our politics, to pause and consider these matters properly. If only to ensure that we embark on building the new nation with a clear understanding of what we're about. As a Yes vote in September begins to look possible, we're going to have to give serious thought to these questions, and resist the temptation to be railroaded into adopting an unsatisfactory basic law by conservatism, simple lack of imagination, or awareness of the alternatives. To that end, over the next four months I'll be writing a series of articles here, touring potential constitutional controversies, exploring the arguments on both sides and gesturing towards some of the informative international parallels which might inspire (or warn) us, as we set out composing our basic law. 

As you might expect, I have views and preferences about many of these issues myself, but the primary function of this Constitutional Imagination series is not to proselytise for particular constitutional causes.  It hopes to serve a more cartographic purpose, mapping some of the alternatives in an accessible way, aspiring to whet your constitutional imaginations, and get the cogs whirring. If Scotland is to have a constitution devised to a significant extent by its people, its people must begin to exercise their minds more seriously about the options.  Through this series, I hope to make a modest contribution towards that goal.  Watch this space.

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...

Constitutional illiteracy

The public know one thing about the British constitution, and it isn't true. The criminal lawyer is always asked how she can bear to represent a defendant who she suspects to be guilty of some ghastly offence. The constitutional lawyer is always ribbed because he doesn't really study anything at all.

I've lost count of the number of times a twinkly pub bore has advised me that "there's no such thing as a UK constitution". As my undergraduate students will tell you, perhaps to their regret, for all of the confident simplicity of the over-refreshed citizen's legal analysis, this isn't really the case. We may have no single foundational document headed "we the people" which you can point to as the wellspring of constitutional ideas in Britain, but we are not without fundamental principles and concepts around which our law and politics are organised. 

The sovereignty of parliament is one of those fundamental principles. In its most basic formulation, it means that parliament can make or unmake any law it pleases. Under a codified constitution, legislative power is characteristically established subject to limitations. If an Act violates constitutional rights, for example, courts may step in and declare the legislation invalid, unconstitutional. In the UK, by contrast, parliament is sovereign today, sovereign twenty years ago, and sovereign tomorrow. The representatives forming it may age, may resign, may die, but election to election, decade to decade, the parliament remains possessed of its unalienable sovereignty. In practice, this means that no parliament can bind its successors, and every piece of legislation is vulnerable to repeal if a majority in the Lords and Commons can be mustered for it. 

This orthodox account has been considerably shaken by the implications of Britain's membership of the European Union and the supremacy of European law. The law on the books diverges significantly from political practice. There is also a long-standing dispute about the extent to which Westminster is empowered to disapply fundamental provisions of the Act of Union.  

But in general terms, most if not all constitutional lawyers in the UK recognise that without jettisoning the idea of parliamentary sovereignty and establishing a new and more limited legislature under a written constitution, entrenching Bills of Rights or statutes is a non-starter.  The Blair government recognised as much when it introduced the Human Rights Act 1998.  Elements of the Conservative Party are keen to exercise this authority to "Axe the Act" after the next general election. The same legal vulnerability extends to the devolution settlement.

That context in mind, I read Scottish Labour's wheeze to "entrench" devolution with interest. Yesterday's devolution commission report reads, in part:

"The Scottish Parliament is a permanent feature of the UK constitution and that legal provision should be made to reflect the political reality that the Scottish Parliament is indissoluble and permanently entrenched in the UK constitution. We also recommend that the “Sewel convention” should be given a statutory basis. This should be enshrined in law to give effect to the convention that the UK Parliament regards the right of the Scottish Parliament to legislate for the matters it properly controls, and that its powers cannot be changed without its consent."

 
But can it be done? In a limited sense, perhaps. Westminster may be able to immunise the Scotland Act against implied repeal. But express repeal? Without a revolution in British constitutional law, that's a non-starter.

Consider this scenario, which might as well be a problem in an undergraduate tutorial. Having defeating the perfidious Scottish Nationalist forces in the September referendum, in early 2015, Westminster amends the Scotland Act to fulfil Labour's ambition to "permanently entrench" devolution. Section 1(1) of the Act provides that "there shall be a Scottish Parliament". After this provision, MPs sneak in the amendment that "Section 1(1) of this Act shall not be susceptible to repeal or amendment by any other enactment or subordinate legislation in all time coming."

Whizz forward a month or two, and MPs find themselves once again embroiled in a corrosive expenses scandal, accompanied by a fresh financial crisis. Capitalising on the public disquiet, a buoyant Nigel Farage leads UKIP into an unexpected triumph in the general election poll, forming a minority government in the Commons. Supported by disparate and disgruntled elements of the Labour and Conservative MPs, Farage introduces a Bill to repeal the Scotland Act and abolish the Scottish Parliament tout suite.

Passing the Lords and Commons by the slimmest of margins, the monarch follows convention, giving royal assent to the legislation. Outraged, MSPs mount a legal challenge, arguing that the 2015 amendment prohibits Farage's parliamentary majority from taking the step, and the purported abolition of Holyrood was ineffective. Imagine you are one of the justices sitting in the UK Supreme Court hearing the case. What do you do?

The orthodox answer is that parliament cannot bind its successors, and the later, explicit enactment prevails over the earlier prohibition on MPs meddling with Holyrood. Despite its stern language, interpreted in the light of basic constitutional principles, the amendment was legally ineffective fluff; the Scottish version of section 18 of the European Union Act of 2011. Politically significant, perhaps - a declaration of intent on the part of legislators - but no legal let or hindrance on parliament obliterating Holyrood if it acquired the inclination so to do.

Nothing in the Labour document shows an awareness of any of this. It is difficult to disagree with Ian Smart's assessment, in a trenchant critique of the Labour report last night:

"And as for the idea that the Scottish Parliament could not be abolished without its consent? Where to start. Certainly, even now, that would be politically unthinkable, but for that to be "outlawed" wouldn't be possible without ripping up the UK's unwritten constitution and starting again with a properly written one. For what it's worth, once again, I am personally for that but that constitution can't be written unilaterally by less than ten percent of the UK's population, let alone by one political Party within it."

Quite.

The White Paper Constitution

An independent Scotland would have a written constitution. The text of that constitution would be formulated not by parliament, but by a specially-convened convention.  The Scottish Government would be a participant in that process, but just one voice among many.  The document would set out the basic democratic institutions of the new State. It could and would also go further, enshrining the rights of the citizen. It is envisaged that these would extend at least to the rights protected in the European Convention on Human Rights, but other concepts might be included.  

A ban on nuclear weapons within the jurisdiction, perhaps. And social and economic rights of unclear scope and specificity, but potentially guaranteeing specific policies, such as free higher education, or a guarantee of a vocational training place.  This constitution would also, presumably, enshrine the SNP leadership's preferred policy position of retaining a monarchy as head of state. You'd imagine that they would hope to take this issue off the convention table. It is unclear how this is compatible with a constitutional moment, belonging to the people rather than to politicians, which the government merely enables and participates in, rather than stitching up ahead of time. This much we knew before this morning.

Has the White Paper shed any more light on the Scottish Government's constitutional vision, anchored it in place? Not really.  The new constitution is a tricky area for the SNP. On the one hand, their commitment to a participative process of formulation - however vaguely defined - precludes anything beyond a general statement of the sort of principles they'd like to have examined by that process. Anything more, and you can imagine the paranoid Better Together news release: "Tyrant Salmond in undemocratic attempt to dictate constitution" shock. You can't win.

But today's list of ideas doesn't substantially extend or elaborate those which the First Minister has already canvassed in earlier constitutional speeches. There are gestures towards entrenching the "existence and status" of local government, environmental protections, and a majestic but superlatively vague proposal to enshrine:

"... entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society."

On one level, I'm a little surprised that the Scottish Government didn't take the opportunity to supplement this list further. I wondered if, for political reasons and the centre-left Yes coalition they're pitching for, the SNP might have used the White Paper to promote the idea of enshrining collective bargaining and labour rights in the constitution. They haven't done so - yet.  The White Paper also demurs to express any view on whether these rights should be judicially enforceable, or form only an elegant, uplifting preamble. Substantive questions, perhaps, for another day.

I'd also wondered if the Government would at least have used the White Paper to get a bit more specific about the process for formulating this constitution. What would the messy, democratic enterprise look like, in outline? They largely eschewed doing so, beyond confirming that "the pre-independence legislation will place on the Scottish Parliament a duty to convene an independent constitutional convention to debate and draft the written constitution". It is perhaps useful to canvass a few of the - very real - issues about formulating the constitution which the Scottish Government could have and have declined to explore in any detail in the White Paper.

1.  We know the Scottish Government want this Convention to formulate the constitution. But how will its membership selected by an SNP government post Yes? By appointment? Special popular election of candidates, on a national or regional basis? Some combination of the two? They make reference to citizen-led processes elsewhere in the world, but are noticeably coy about committing to any preferred model. This may not be a problem. Formulating this constitution will be an enterprise in itself, and who gets a formal say rightly a source of controversy.  

Better, you might think, for the SNP to avoid getting into these debates too soon, but a slightly more specific hint might have been a politically helpful statement of principle.  A missed opportunity to underline that we're not - or shouldn't be - talking about forming up a new gaggle of old establishment worthies - think of it as Calman Plus - to filter through all the ideas promoted by the Plain People of Scotland. The constitution has to be protected from political fixing - but Lord deliver it from the suffocatingly familiar atmosphere of "civic Scotland" too. 

2. A few more cynical points. We know that they envisage the constitution will be drafted by this convention. But how do they envisage that it will be ratified by the people? Will politicians have any power to amend, or to decline to submit this text in its entirety to the people? If some sections of the draft are controversial, will they be subject to separate questions in any referendum? And who decides what is a "controversial" issue anyway?

This isn't an academic concern. Look at the fallout from a citizen-led process in Iceland. That pristine, crowd-sourced constitution is still sitting on the shelf, spiked by politicians due to the radicalism of some of the proposals.  It is perfectly conceivable that something similar happens in Scotland. Say if the question of the head of state because controversial in the convention process, as it doubtless will. Because the SNP's head of state commitment sits uncomfortably alongside a citizen-formulated constitution, a certain evasiveness here is understandable during the referendum campaign - but the issue is bound to bite eventually. 

3.  In the "justice" section, the White Paper notes "the Inner House of the Court of Session and the High Court of Justiciary sitting as the Court of Criminal Appeal will collectively be Scotland’s Supreme Court".  While transitionally, this seems like a reasonable arrangement, we shouldn't foreclose considering a couple of other alternative institutional models. We might echo the United Kingdom, and form a new Supreme Court to consider all matters, civil, criminal, constitutional.  

Alternatively, we might depart from the Anglo-Saxon fixations and form a new Scottish constitutional court in echo of a number of continental jurisdictions.  This constitutional court which would not, like a supreme court, sit at the apex of other courts, trafficking in ordinary litigation as well as constitutional issues, but would be founded independently from the ordinary judicial hierarchy.  Although our constitutional traditions are likely to pull us in the other direction, perhaps leaving the courts of Session and Justiciary as they are, separate but integrated - the idea at least warrants consideration.    

But like much else in the constitutional debate after this White Paper, that is a question for tomorrow.

You sunk my battleship!

Strategic defence procurement, I'm unashamed to admit, isn't really my bag. Little in a law degree prepares you for thinking about Brigadoon Class Sloops or which port and yard has the requisite know-how and balance of commercial imperatives to launch the ever-vigilant (if slightly listing) steel-plated HMS Drouthy Neibor.  

 But job-losses and the future of ship-building on the Clyde (martial or peaceful) consumed the news agenda in Scotland last week, and are the first topic up on Episode 37 of the For A' That podcast. 

Joining Michael and me this week are SNP and Women for Independence-bod, Natalie McGarry, and Stuart Campbell of the Wings Over Scotland blog.  Having unscrewed some of the rivets holding the frigate-controversy together, we shifted tack into the storm currently engulfing Johann Lamont and the Scottish Labour Party. Here be dragons. Between Falkirk, Grangemouth, and the party's holing itself below the policy waterline in order to win Dunfermline, we take a closer (and not entirely unsympathetic!) look at the party's fortunes, two years into the SNP's second term in office. 

Escaping from these choppy waters, we moved on to our third topic. I'm speaking at a Scottish Constitutional Futures Forum event at the University of Strathclyde this week, examining the constitutional options faced by an independent Scotland if we vote Yes next year.  What should be in our basic law? What principles should inform the debate? And for that matter, who should decide? Is Alex Salmond right, for example, that things like free higher education at the point of use should be constitutionally protected? If that, why not other things - trades union rights, women's right to have their reproductive choices protected, a minimum wage?  

Lastly, as we were recording on Remembrance Sunday, we discussed the annual poppy controversy. Has the solemn act of remembrance seen the poppy inappropriately appropriated by showbizzy glitz? Is this a generational shift, perhaps, as the generation who fought and lived through recent conflicts, leave us? Can the militaristic quality of remembrance of those killed in war forget important victims of conflict? And most controversial of all, perhaps, has this - can this - annual national ritual shade from the mournful recollection of wasted life into the politically problematic valorisation of war?

You can listen to the show right here or on its homepage, or tuck it away for later by downloading it from Spreaker or from iTunes.  Happy listening.

Scotland: A Crowned Republic

After the Union of the Crowns in 1603, the Scottish Court having decamped south to govern Britain from the banks of the Thames, King James the I and VI famously boasted that “here I sit and govern it with my pen; I write and it is done, and by a Clerk of the Council I govern Scotland now, which others could not do with the sword.” 

In practical terms, you can be sure a good deal more effort, more folk and pens and swords, were involved in the administrative work of ruling Scotland in his absence than this languid, and characteristic, aphorism recognises. In James’ absence, the distinct Scottish Privy Council continued to attend to the Crown’s interests in Scotland. It would sit until the second union, being finally dissolved as a separate body in 1708. 

In Parliament, the King’s Lord High Commissioner continued to tap Scottish legislation with the sceptre, indicating royal assent to the laws adopted by his subjects. Today, the Privy Council continues to meet in London, Holyrood receives  royal assent to its Bills in letters patent, and the sceptre reposes prettily in Edinburgh Castle.

The First Minister is fond of suggesting that the SNP plan to roll back the Union of 1707, "restoring the Regal union" of 1603, and the personal union of Scotland and the rest of the United Kingdom under the sway of a single sovereign. As a wean, briefed at his grandfather’s knee in Scots history in Linlithgow, Salmond is prone to the occasional Romantic outburst, and his vision of a 17th Century “restoration” for the 21st warrants closer scrutiny.  What has been less clear is how practically this "restoration" might be realised and what it might mean in practice.

Would the Scottish Privy Council be revived? Would legislation continue to require, even formal, royal assent? Commonwealth states who have retained the Queen as head of state furnish useful parallels, and pose pertinent questions. Although Queen Elizabeth remains the Australian head of state, she wears a different Crown in the antipodes, governing distinctly as Queen of Australia. The same goes for the other countries which the Queen - at least theoretically - heads.

In Australia, New Zealand and Canada, for example, the Crown’s duties and powers are exercised by Governors-General. Would Scotland have an equivalent figure, representing Crown authority after independence? Salmond has been noticeably quiet on the question, but his plans do not seem explicitly to compass the creation of a new Governor-General for Scotland, or any equivalent figure. The question of a Privy Council hasn't got a look in at all.

Currently, Scottish republican strategy seems to be limited to grousing about the First Minister’s enthusiasm for Liz Windsor, and emphasising that some good socialists still exist, who believe the people are and should be the sole source of sovereignty in an independent nation. That’s all well and good, but there’s no harm in planning ahead, on the assumption that we win the referendum but Salmond prevails and the Windsors keep their throne. The important question is not just whether Scotland would and should retain the monarchy, but how monarchy might be retained – and changed – in an independent country.

In UK constitutional theory, the Crown is part of the legislative branch, the Crown-in-Parliament representing a constitutive dimension of Westminster sovereignty, in addition to the Lords and Commons. No parallel theory sees Holyrood’s relationship with the Crown in this light, but the Scottish Parliament is a creature of Westminster statute, and the Queen still gives royal assent to Scottish Bills.

The Privy Council, though even more baroque-sounding, is actually employed in important governmental work. Subordinate legislation called Orders in Council, such as the section 30 order which gave Holyrood indisputable power to hold the referendum, were made by the Privy Council. The Council has other functions too, emanating both from statute law, and from the historical powers of the Crown itself, its so-called prerogative powers, now effectively exercised by ministers of state.

We’ve heard a bit more than is typical about the royal prerogative recently, around the debates on waging war in Syria. Historically, power to declare war has been vested in the sovereign, and it is to the sovereign power of the Crown that Prime Minister David Cameron could still unilaterally appeal to throw us all into any conflict of his choosing. Politically, that would be unacceptable, but legally, the Queen’s Ministers, in exercise of the Crown's prerogatives, still enjoy those powers.

On twitter, I recently had a wee scrap with a couple of folk, arguing that the real reason Salmond wants to keep the monarchy to get his mitts on the full powers of the royal prerogative.  People making this argument tend to be less clear about which prerogative powers they have in mind.  As Adam Tomkins has argued, even in the UK, the sway of the royal prerogative is diminished and diminishing, de facto and de jure.  The zone of unfettered power is shrinking.

The Prime Minister’s power to wage war is, as we’ve seen, increasingly curtailed by political expectations that the legislature have a voice in the debate. Other areas in which the prerogative has traditionally been exercised have fallen out of ministerial power, and under statutory governance.  The fixed parliament legislation settled the Westminster parliamentary term, depriving the incumbent Prime Minister of the opportunity to dissolve and call elections whenever he or she damn well pleases. Traditional areas in which the royal prerogative has been exercised freely by ministers, such as the grant of passports and the civil service, are increasingly the subject of legislative codification and regulation.

For folk like myself, keen to topple the House of Windsor and to abolish nobility and princelings, the SNP leadership’s plans to retain the Queen as head of state prevail against my preferences. For calculating republicans, however, the important question is not only whether we have a crowned head of state, but if we’re to be stuck with a Queen of Scots, what sort of monarch do we make her?

It is for our constitution to determine, after independence, what powers and privileges this Queen of Scots is to enjoy. There is no reason whatever to suppose that we should leave the authority of the Crown in Scotland unaltered, as is, and simply invest Scottish Ministers with the prerogative powers currently enjoyed by their London counterparts. Superficially, Queen Elizabeth may reign uninterrupted. Backstage, however, a new constitution affords an opportunity to rearrange just about everything. 

A few ideas. If Scotland is to be a crowned republic, premised on the sovereignty of the people, why should the laws adopted by the people’s representatives continue to require even token consent from the sovereign? The tripartite parliament in Westminster, Crown-Lords-and-Commons, emerges from a rich and interesting constitutional history.  Let the London antiquarians tend and preserve it, if they will.  As for us, let’s ditch it. Why retain the fiction of a Governor-General, or some other viceroy? Why not, like the Swedes, deprive their monarchs of the burdens of assent, and ourselves of its undemocratic symbolism?

It minds not me that Queen Anne was, famously, the last monarch to decline to give her assent (appropriately enough, to a bill concerning a Scottish militia). If the procedure is extraneous and decadent, ditch it. By all means, have a period after parliament adopts legislation within which law officers can refer it to the constitutional court for deliberation on its validity, as at present. To date, that mechanism has never been used.  But no gaudy royal protocols are needed. 

By all means, reconjure the Scottish Privy Council into life. But let’s abolish orders of chivalry and nobility. Let the gowns fray on the shoulders of the last Knights of the Thistle. Let this Queen of Scots continue to debauch the public manners and promote deferential foppery. Folk who still hold her hollow crown in awe will be contented, and Better Together are denied a dividing line in the referendum. But the real business of republicanism lies beneath the jewels and polished metal, and beyond the ludicrous show of elderly toffs posing as archers, creaking in green, and gaudy playing card heralds, trying to keep their dignity intact inside their tabards. 

Instead of expending useless energy gouging Salmond’s royalism, I'd encourage Scottish republicans to scheme a little, and to plan for a republican constitution with a crowned head. If we must keep Queen Liz, let’s make sure she inherits a Scottish crown as amenable as possible to future republican amendment. Let’s clear away the prerogative clutter, so mere convenience and expediency make no case for keeping her longer than necessary, wish her joy of the throne, and work to ensure she finds the seat uncomfortably unfamiliar. 

Tory Human Rights Trolling Vol. 145

How's this for a Union dividend? If David Cameron's government secures re-election, the Human Rights Act is for the chop, as is Britain's participation in the European Convention on Human Rights.  So says the Home Secretary Theresa Gray, and Chris Grayling, the Lord Chancellor. 

The British judge on the court will receive his P45. All those elected "unelected Euro judges" will have to spend their time deciding cases lodged against Malta and Liechtenstein instead.  Britain can "repatriate" the ten judgments it actually lost in Strasbourg's "war on British justice" last year.

And the Daily Mail, with exhausting predictability, will eventually turn its fire on our actually-unelected UK Supreme Court over some decision or other. The rhetoric about judicial encroachment on the sovereignty of parliament serves perfectly adequately against domestic tribunals too.  While the hacks will be deprived of the diverting satisfactions of europhobia, the old anti-judicial nostrums still have spice.

Last week, Mark Elliott of the University of Cambridge took an informative look at what might come next. On the domestic side, will the fabled "British Bill of Rights" take shape to replace the repealed human rights protection, or will the Tories take us back to the true-blue days before Tony introduced the Act in 1998? Internationally, it isn't at all clear that we can denounce the ECHR and remain inside the EU, which has, itself, recently acceded to the regime.  Bring it on, some Tory MPs might say. It is easy to make fat-headed speeches in support of such a proposal, but rather harder to realise in practice.

What's missing in all of this is Scotland, and the rest of the devolved powers. Of Holyrood, the Welsh Senedd and Stormont, our ardent Unionist government has said diddly squat. And there's a snag. Yes, the Human Rights Act applies across the UK. Yes, Westminster could repeal the law.  But there's more. ECHR protections are separately written into the Scotland Act, and the Wales Act, and the Northern Ireland Act. Neither the legislative assembles and parliaments, nor their ministers, can act in a way which conflicts with the fundamental rights protected by the ECHR or EU law.  If they do, the courts can and will step in, to keep the legislatures and the politicians in line.

Leaving the jurisdiction of the European Court, or repealing the Human Rights Act, will leave these provisions intact. In the discharge of his ministerial functions, Kenny MacAskill will still have to uphold Article 8's protections of the right to privacy and home life. Holyrood's legislation could still be challenged and knocked down by courts in the name of the property rights, enshrined in the first Article of Protocol No. 1 to the European Convention. 

Legally, Westminster could certainly amend the Scotland Act too to knock out these clauses, but will that be politically possible? I'm not so sure. Nothing in Grayling or May's rhetoric suggest they have thought about the implications of the devolved powers at all, or have the slightest awareness of this considerable problem with their plans.

Since 1998, the constitutional convention has evolved that amendments to devolution legislation must be approved by the parliament they relate to. Thus, Holyrood debated, scrutinised and sanctioned the Scotland Act, passed by Westminster in 2012.  The bottom line: if we vote No in 2014, and the Tories try to knock out the ECHR protections in the Scotland Act, Holyrood would arguably be in a position to veto the idea.

Would it do so? As others have noted, the SNP government's line on human rights has not always been consistent (and in some cases, even intelligible). Salmond has dragooned the idea of judicially-enforceable constitutional rights, and remaining in the ECHR, into the independence debate. If you look back through the legislative record, however, you'll find instances (in the light of Cadder) where both the First Minister and his Justice Secretary have seemed to argue that the ECHR protections written into the Scotland Act should be eliminated.  If the Tories were in a position to offer the Scottish Government just that, would they decline? What about the Welsh Assembly, or the Legislative Assembly in Belfast? A question for another day.

Overall, though, I'm struck yet again by how little these London politicians regard, respect or even understand the evolutions in Britain's constitution of the last almost-two decades. In his Memorials of His Time, the Scottish Whig judge Lord Cockburn observed that "we had wonderfully few proper Jacobins" in this country during the 1780s and '90s, despite the fears of a reactionary Establishment.  Today, it seems, you find marvellously few proper Unionists in this Conservative government.

A Scottish eye on Éire...

Yesterday, the Republic of Ireland rejected the Sinn Féin-supported Fine Gael-Labour government proposal to roll up the second house of the Oireachtas, leaving the proportionally-elected Dáil as the Republic's solitary parliamentary chamber. By all accounts, the constitutional referendum was a bit of a boorach, but as a consequences of the narrow vote for retention, Ireland's unreformed Seanad lives on, leaving the country in the bicameral column in terms of democratic states.   

Like our own beloved House of Lords, with its dubious mixture of political appointees, a small phalanx of hereditaries and Church of England bishops, the sixty-soul Seanad is not directly elected by the Irish people, but are formed according to a dizzying array of protocols.  The Taoiseach gets eleven.  Historical elitism gives the graduates of certain Irish universities six more, while the balance of forty three more are plucked from obscurity by "vocational panels" of some sort.  

Even to the outsider's eye, this doesn't sound ideal.  I'm poorly placed to reflect on the internal fallout for Irish constitutionality and politics but the Irish referendum does pose interesting questions for those of us, looking forward to a Yes vote in 2014, and beyond, when thinking about the constitutional structures an independent Scotland could and should adopt.  

Given our constitutional traditions and history, and the Nationalist plots to retain the Queen as head of state, it seems unlikely that a presidential system will hold many appeals for the new nation. Parliamentary democracy's almost certain to be the thing, and a good thing too, you might well think.  But what sort of parliamentary arrangement? And what values ought to inform that choice? It's a big topic which I'm just going to dip into here, but I wanted to sketch a few of the issues we'll have to think about.

Firstly, and most elementarily, should we have a second chamber at all? Do we need one? If you look at democratic nations of similar size, the Danes get by with just their 179 MP Folketing, as does the 120-strong Israeli Knesset. On the other hand, U.S. states of parallel populations often maintain bicameral state governments.  For instance, Colorado, with a population of just under 5,200,000 folk, supports a directly-elected governor, and a state House and Senate with 65 members and 35 members respectively.  Coming in at 129 MSPs, devolved Holyrood will seem to many folk sufficient.  Why multiply our politicians? Why have two chambers at all? 

Use and convenience will may unicameralism attractive to many, but there are problems with the status quo. Holyrood's current procedures leave it particularly vulnerable to last-minute government amendments. Bills go through three stages.  The first two involve extensive Committee involvement, including calls for evidence, scrutiny, debate.  The third stage, by contrast, is usually raced through the whole chamber in a single sitting. It is commonplace for the government to attach new, entirely unscrutinised provisions at stage 3, meaning that wholly unscrutinised provisions hit the statute book.  This is a recipe for mischief. 

In a bicameral system, this wouldn't be possible in the same fashion, and the second revising chamber would have an opportunity to arrest the now irresistible speed at which a unicameral legislature can adopt new laws.  Bicameralism is not, however, the only solutions to these challenges, but it is one potential way to make space for laws to be properly considered.  On the other hand, some folk are understandably concerned that an elected second chamber would find itself in political competition with the first. Which brings us to the question of appointment.

Although it seems unlikely to be politically acceptable, we might consider the ideal if not the detail of the Irish Seanad model, forming a second chamber from knowledgeable sorts from different aspects of civic life, to inform our legislative process. Different appointment mechanisms might be considered.  Alternatively, we sturdy democrats might favour direct election across the parliamentary board.  If so, there is still the possibility that the two parliamentary chambers could be elected according to different franchises, to serve different constitutional goals.

For example, the Electoral Reform Society have recently mooted the idea that a revising chamber could be composed of a revolving group of average punters, selected by lot. Alternatively, we might take our inspiration from the Americas, and try to use a second chamber to reflect Scottish regional diversity. Holyrood's current set up means that the more-populous parts of the country politically dominate Scotland's lower-population, usually rural corners.  For much of Holyrood's early history, this was represented in the rule of the predominantly urban Labour Party (albeit with more rurally-inclined Liberal Democratic allies).  

Might an independent Scotland want to use a second chamber to even out these imbalances of population, giving minorities greater influence on the political process? This sort of thinking informs the American approach where, for example, seats in the federal House of Representatives are allocated on the basis of population, but every state, regardless of size, has two senators. Senators are also less-regularly elected than their House of Representative colleagues (and if I remember my United States constitution correctly, must by law be more ancient than your callow congressman). 

A recipe for political gridlock? Maybe. But it is also an attempt to build safeguards into the democratic system so that the majority cannot always overwhelm the minority.  Although the scale of the independent Scottish state would differ significantly from our American cousins, Scotland has its own geographical politics which we might want to take account of constitutionally. A second chamber could reflect these interests and values. We could even ape the provisions of the UK Parliament Act, allowing the populist "representative" chamber to override decisions reached by a second, regionally representative body.  A veto isn't inevitable.  Everywhere, there will be constitutional choices for the new Scotland to mull over.

If we achieve a Yes vote next September, we're going to have to think about all of these sorts of issues.  Although the noisy voices of common sense will, as always, claim their preferred models are inevitable and obvious, a new constitution represents an opportunity to approach our politics in different ways, requiring us to think about the values we want to privilege in the process.  For that reason at least, Ireland's abortive lurch towards unicameralism has lessons, and poses questions, for us all.

"Eck Salmond came down like the wolf on the fold...

... his caramel log gleaming in scarlet and gold."

It's Sunday morning, and that means a new edition of the For A' That podcast. On episode thirty-four of the show, Michael and I were joined for a second time by Pat Kane and by James Kelly, of the Scot Goes Pop blog.

Up for the blether this week, Scotland Tonight's Sarwar vs Sturgeon rammy on STV, notionally concerned with social security and the welfare state of an independent Scotland.  Was this Scotland's "big debate", or an unilluminating, unappealing boorach? We offer our verdicts. For Pat, it was a "credibility-threatening" performance for one of the participants. I shan't spoil the surprise by revealing who.  

We also discussed the resurfacing of a certain G Broon at a United with Labour event in Glasgow this week, on pooling our resources and entrenching devolution.  We pick through some of the the former Prime Minister's arguments, his legacy, and his surprising constitutional (il)literacy. 

Our final big theme for today was racialism and advocating independence. Over the summer, several folk have argued that the current Yes case lacks green sap, and has managed to make startling constitutional changes ... boring. Is this a problem? Is reassurance the right strategy? Are we, by consequence, disciplining reasonable disagreement and ideological diversity on the Yes side of the argument?
 

We also dip a tentative iambic foot or two into the great #indyref poetry debate. As we speak, I'm busy, scratching out a heroic verse ballad in defence of my constitutional ideals, starring an Ossianic figure, harried by a cunning crow goddess and her fell, carrion-picking minions. Now, all I need do is find a few more words that rhyme with "Unionist"...

Download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.  Or alternatively, just lend it your lugs right here, right now.

In praise of ... short constitutions

Thomas Jefferson once observed "that the earth belongs in usufruct to the living".  Usufruct is an old concept from Roman law, often known as life-rent in Scots law. The usufructary may make use of the property she occupies, enjoy its fruits, till its fields, but she may not dispose of it forever.  Once her life is spent, her rights over the territory are extinguished.  

In his 1789 letter to James Madison, Jefferson was concerned with the relationships between one generation, and its successors, writing:

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it."

As the future President of the United States recognised, this is a question of singular importance, when framing and thinking about constitutions. It is a question which will face Scotland, if it emerges as a renewed sovereign state after 2014.  What political struggles do we crystallise, try to settle in its page or pages? What issues do we let dead men and women decide for the living? What liberty do we leave to future generations, to determine the shape of our polity, or alternatively, to amend the terms of the constitution, if it grows uncongenial or inconvenient?

Already in the debate on Scottish independence, we've heard grand claims made for constitutions, and an accumulating laundry list of concerns and cares which folk will, in time, vie to have added to an independent Scotland's fundamental law and list of protected rights, liberties and entitlements. 

We've heard talk of an "aspirational constitution" for Scotland, an inspirational crucible for "our" values. Amy Westwell has argued the case for a vigorous, radical constitutionalism for a new Scotland:

"There must be a real political rather than institutional movement, which talks about democracy, active citizenship, and public law in terms of the constitution, so that when the constitution comes to be formed it is seen as a political statement, and the establishment of levels of democracy as the embodiment of ideals, rather than bureaucratic institutional forms."

Substantiating of version of this, the First Minister has mentioned a ban on the presence of nuclear weapons in Scots territory, and even a constitutional provision requiring free education and youth employment for every nipper. As the issue is discussed, my guess is that we can expect more and more suggestions to accumulate across the gamut of policy.  

The Brazilian constitution furnishes a potential model of this sort of expansive, aspirational fundamental law.  It regulates, amongst other things, extensive labour rights including rates of annual holiday and minimum wage "capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose".  

Once you get into this sort of thing, where do you stop? What political topics ought to be immune from the ordinary political process, excluded from the usufructary package, and written into the fundamental law? After all, what about women's rights? Why not put rights of access to abortion in the constitution, and to equal pay, maternity (and paternity leave) into the document? What about disabled people? Shouldn't their entitlements to benefits enjoy entrenched protection, rather than being subject to the ordinary argument and sway of month by month, year by year politics? The NHS is, for many folk, emblematic of a collective commitment, however fraying it might be, to social democratic values. Why not ban the outsourcing or services to the private sector in the basic law of a new Scotland?

In other countries, constitutional protections reflect political experiences, and political struggles, with the victors keen to entrench hard-won gains. This is an understandable impulse, but I'm not convinced that it is one an independent Scotland ought uncritically to follow, whatever the clamour from this interest group, or that. I'm sympathetic to all of the policies I summarised above. I'm just not convinced we ought to find them in the written constitution of an independent Scotland.

To give you one example, a lesson in caution about what you include in your constitution, a story in the Irish Times caught my eye this week. The Republic's Supreme Court is overloaded, and plans are afoot to institute a new Court of Appeal, liberating the apex tribunal to focus its attention on tricky constitutional matters.  Under Article 46 of the Irish constitution, the necessary amendments to the constitution will need to be approved by a national referendum. Although access to courts is an important issue, it seems an extravagant requirement to consult the whole body of the Irish people about introducing necessary reforms to how justice is realised.   

Of course, other states organise things differently, dispensing with any referendum requirement, requiring instead only a qualified majority in the legislator to alter the constitution.  But both the issue of what to include, and how we might amend any basic law we pass, returns us to Jefferson's anxiety that the living, and not the dead, should decide how their polity is governed.  

Of course, things are a wee bit more complicated than that. Constitutions can be lyrical statements of values, but legally unenforceable in court. I'm not enough of a dry legalist to argue that mere words of this sort are unimportant, and that justiciability should be treated as the gold standard of value. In thinking about any constitution, however, we begin to make serious choices early on.  

Lean constitutionality of the sort I favour is, I suspect, unlikely to find much favour with many politically active Scots after independence. A constitution which established institutions, lawful forms isn't one to stir the blood.  Its jurisprudential aspirations won't stiffen the sinews, save perhaps for the willowy limbs of the stoory odd public lawyer.  It'd look suspiciously like the rejected, Westminster-style legislative supremacy, even if a modest list of protected civil and political rights were appended. A crucible for national values, save for those of democracy, liberty and the rule of law, it ain't.

There is nothing democratic or radical about this generation trying to settle its will on all who come after it.  The entail (or tailzie, for your Scots lawyer) is an outgrowth of feudalism, not a lively concept fit for an active democracy of engaged citizens. 

Politics too belongs in usufruct to the living: not to self-righteous, dead social democrats, nor old wigs in the dim litigious light of a constitutional court.

Despatches from Nationalist-occupied Scotland...

There's your vellum, there's your quill. Now bugger off and write your constitution.  While that prospect might excite history's most avid amateur constitution framers, like the Abbé Sieyès, most folk quite reasonably wouldn't have the foggiest where to begin. Scratch around inside your skull and you're sure to find at least a few borrowed constitutional precepts and examples, but framing of the whole text? The prospect is intimidating to say the least.  

As an entrée, it seems more useful to pick a concrete issue, and use it to explore potential controversies about the different sorts of constitution we might choose from.  In a speech in London this week on a future independent Scotland's written constitution, Alex Salmond did just that, giving three examples of the sorts of question which a Scottish constitutional convention, framing the fundamental law of the land, would have to consider. The first he picked is arguably the handiest for stimulating the constitutional debate.  Salmond said:

"At the moment, the UK Government’s austerity measures and welfare cuts are raising questions about how people’s rights to vital social services can be protected. In Scotland we have a policy of the right to free education in keeping with our history as the nation which pioneered universal education. We also have homelessness legislation which is proving effective by granting rights to people who are made involuntarily homeless. There is an argument for embedding those provisions as constitutional rights."

Do you agree? Should we be seriously thinking about the constitution before 2014, or should we put off the discussion until after the poll? That was just one of the issues we nattered on about in this week's episode of the For A' That podcast. Michael and I were joined by Osama Saeed all the way from sunny Qatar. 

Currently Al Jazeera's head of communications, in a past life, Osama was also an advisor to the First Minister and Westminster candidate in Glasgow for the SNP.  We also discussed the international coverage which the independence debate is attracting, the snarky, loopy, anti-nat tenor which gripped the House of Commons debate on the section 30 order, passed by Westminster this week, and took a look back at the politics (and drama) of the city of Glasgow, in a week lacking neither.  As usual, this episode can be downloaded from iTunes and from Spreaker, or alternatively, you can listen to it online here.

Nationalists & Unionists: Putting it to the touch to win or lose it all...

Whether or not you think including a devo-something question in the independence referendum is a good idea, and I've swithered about that something fierce, it always seemed to me more likely than not that we'd end up with a single question poll.  

"Civic society" pro-devolution forces have proved not only weak, but more fatally, disorganised and untimely.  Instead of seizing on the SNP's election victory in May as a spur to activity, agitation and the programmatic formulation of a shared agenda and coalition, the dawdling pace which has been adopted by the pro-devolution advocates is startling.  The inclusion of a second question was always likely to be controversial.  Arriving at that debate six months late was never likely to strengthen the case.

And then there is the anticipated structure of referendums in the United Kingdom, which makes a second question so threatening to unionists of various stripes.  The Icelandic may be content to ask no fewer than six questions in their referendum on adopting a new constitution, running the gamut from general to specific political concerns.  In the UK, by contrast, all of the pressures are towards conciseness and posing limited number of questions, with a limited scope.  It is familiar commentary to say that we can't pose a devo-something question, because folk haven't yet coalesced around a text, and a proposal, which could be put to the Scottish people.  Should corporation tax be devolved, but capital gains not? Income tax, perhaps, but not Misuse of Drugs legislation, or fundamental rights protection? One obvious - but hitherto unthinkable - solution to the absence of agreement would be, like the Icelandic, to pose a series of questions on specific policy areas.  

Of course, that wouldn't answer the objection that Scotland cannot - or should not - unilaterally attempt to impose a federal structure on the rest of the UK, but might dispense with the objection that no sufficiently concrete devo-something proposal has been formulated ahead of time. And yet, and yet, nobody has seriously engaged with the possibility of posing more than two questions.  Accordingly, my observations of February still obtain, and weigh decisively against pro-unionists, keen to keep control over the UK constitution in parliamentary hands, accepting any second, devolutionary question:

"... given the pressures to ask concise referendum questions, practically, it will be exceedingly difficult to frame, never mind ask any devo-max question that doesn't borrow the Scotland Act's structure, enumerating reservations rather than powers to be devolved. Moreover, because of the pressures to ask short questions, tersely phrased, the inclusion of a devolution max question in any pre-legislative referendum would tend to discourage long lists of reservations, and promote much increased rather than more limited devolution.  As a pro-devolution Nationalist, this is a fact I can cheerfully endure, but is rather more difficult for those devolutionist or UK federalists who fancy including such a question, but who are knotted in anxiety about taking the ostensible will of the people - as they'd see it - too seriously."

None of this would necessarily trouble the nationalist majority in Holyrood, mind you, but for the marvellous opportunity afforded by the law, and the Scotland Act's often Delphic reservations of power to Westminster. Between 2007 and early 2012, the SNP's legal analysis, at least in public, is that the independence referendum presented no real difficulties under the Scotland Act. In this, at least for a time, they were joined by Wendy Alexander, and, for a time, by David Cameron. Salmond's legislative statement this January heavily qualified this long-cultivated impression, recognising that asking his preferred question - "Do you agree that Scotland should be an independent country?" - was legally contingent on soliciting agreement from Westminster to changes in the Scotland Act.

The Scottish Government, rightly in my view, has held tenaciously to the argument that there is a strong and potentially persuasive legal argument to be made that a referendum would be intra vires, even without Westminster's nod, but that way lies uncertainty, and the risk of legal challenge, and a suspended campaign as Scots courts examined the question with their usual haste and expedition.  By overstating their case, the coalition government, aided by their allies on the Labour benches in Westminster, have ruthlessly exploited these legal uncertainties - which privately the Nats know only too well - to get their retaliation in first, and assassinate any devo-something question before Salmond could etch it on the ballot paper.

Although Ian Smart continues to cling, like a drowning man, to the sinking flotsam of his theory that the SNP will avoid posing a referendum poll if possible, the ongoing and increasing rumbles from the inter-government negotiations suggests that a deal has been cut on a section 30 order.  To my eye, there's a snowball's chance in hell that any agreement would be possible, if Nationalists were insisting that a second, devo-something question was part of the process.  If Nationalists fancied the fight, Westminster's refusal to countenance the inclusion of a popular devo-something question might have embolden them, and give them a political hammer to batter the coalition with, and knock back an unacceptably conditional section 30 proposal.  That, however, would not be without its risks, not least that the referendum would end up in court, and heaven knows what the outcome of that might be, save for acrimony, delays and uncertainty.  If their intention was to delay or avoid a poll, as Ian Smart has consistently (but unconvincingly) argued, this would be the ideal way to bring it about.

And finally, we have the SNP itself, which with customary discipline, has been able to keep its divisions on a second question almost entirely from public view. Partisan Nationalists often favour the Salmond-as-Machiavelli interpretation of the First Minister's devo-something kite flying. Earlier this year, I summarised a few of the dominant interpretations of what the SNP leader has been up to, under the headings of canny manipulation, caution, cynicism, or democratic sensibility..

Account, the first: Alex Salmond is talking about “devolution max” as he is aware of its popularity. Anxious to avoid being blamed for its absence from the ballot, his goal is to pin the blame for its exclusion on Unionist parties, who seem happy to oblige. Appealing to the idea of UK recalcitrance, patronising, haughty – and gadzooks – Tory, he hopes to ensnare social democratic wobblers and erstwhile non-nationalists in a binary choice of independence or the status quo of Tory rule, so uncongenial to many Scots. “If Britain will not move, won’t countenance enhanced autonomy, what option have we?” On this account, “more devolution”, is a political ploy, with partisanship for independence in mind.

Account, the second: Salmond is a man of democratic sensibilities. While not endorsing the proposition himself as his primary preference, he believes that given public feeling, a “more devolution” question should be posed, whatever impact it might have on levels of support for independence.

Account, the third: the First Minister is pessimist enough to concede the possibility the independence will be defeated, and is gaming the counterfactuals. A belt and braces man, who plays the gambler but wagers soberly, a question on “more devolution” affords a sort of constitutional security and a sure basis for future, power-extending politics, if independence does not carry the day.

Account, the fourth: Salmond is doing more than mere contingency planning by promoting “devolution max”. He simply does not believe that independence is winnable at this time, and this extension of devolution is the prize he is really seeking, using the threat of independence to serve devolutionary goals. Because of party feeling, he won’t admit this publicly, and instead gives the impression he is motivated by the democratic commitments of the second account. He will, accordingly, only ask a yes or no question on independence if absolutely forced to do so by circumstances.

When embarking on an analytical enterprise, enumerating your assumptions is often a tremendously useful process. It clarifies your position, but also makes you much more alive to the perils of your approach, the critical turning points apt to upend your conclusions, and generally bugger up your best laid plans and calculations. Most of the analysis thus far has presupposed unanimity at the core of the Nationalist government on the one-or-two referendum strategy.  This doesn't seem convincing.  Although the internal debates have never spilled out into the public domain, my understanding is that members of the cabinet have been split on the inclusion of a devolution question, and some of them were profoundly opposed to including it in the poll.

By contrast, given the kite he's been flying for devo-something for months, going well beyond canny game-playing of the sort envisaged by my first account, it seems a reasonable inference that, if he could have got away with it, Salmond would have been less discombobulated than some of his ministers by the idea of including a second question on the ballot.  Unable to cabal the question in, he may now resort to the argument addressed to those whose aspirations for more devolution have been disappointed, but it would be a mistake, I think, to believe that this was his masterly manipulative wheeze all along, and he'd have rejected the opportunity to pose a second question, if afforded a credible opportunity to do so.

You can understand why senior Nats aren't keen. Indeed, on the current evidence, would be extraordinary if none of the SNP's parliamentary delegation, never mind the wider party, reckoned that devo-something was a primed bear trap, not just for Labour, but for those who support independence, its inclusion a metric of pessimism about (N/n)ationalism's chances come 2014.  On the available data, it seems a tolerably clear that asking folk about devolution - and providing a longed-for middle ground - will only serve to knock the likelihood of achieving independence squarely on the napper.  What life-long nationalist would want to lay stumbling blocks for herself, on what promises to be a long, challenging, exhausting course, criss-crossed with snares and difficulties? A profoundly pessimistic one, perhaps, but after my umming and awing, swither and thon, I've come around to the view that a yes or no independence referendum is my preferred outcome.  A nationalism-with-regrets it may be, but the conclusions seems inescapable that the lifeboat of devo-max is nothing more than a fond fantasy in the United Kingdom as we find it, rather than as I might wish it.

We'll have to wait a wee while to see what terms, if any, Nicola Sturgeon and Michael Moore have met on a section 30 order, for Unionists and Nationalists both, this is shaping up to be a referendum ruled by the gambling spirit of James Graham, the 1st Marquess of Montrose:

"He either fears his fate too much, Or his deserts are small, That puts it not unto the touch, To win or lose it all..."