The rights and wrongs of a constitution

Would an independent Scotland create a framework for government or just party politics enshrined in law?

We asked experts and politicians on both sides of the debate to give us their views.

Scots should have it in writing

by Professor Michael Keating, Director of Scottish Centre on Constitutional Change

The Scottish Government proposes that an independent Scotland should have a written constitution to replace the unwritten conventions of the United Kingdom. The final document would be produced by a convention, including citizens and groups as well as politicians and Government. In the meantime, an interim constitution would come into play.

The final content of the constitution would be up to the citizens to determine, but the SNP have offered some of their ideas. Sovereignty would belong to the people of Scotland, rather than the monarch-in-parliament as at present. Otherwise, the monarchy would keep its present role and prerogatives. Other people on the Yes side would prefer a republic. The Scottish Parliament and Government would remain largely as they are, although some people have suggested that there would be a second chamber to revise legislation. Basic human rights would be guaranteed by entrenching the European Convention on Human Rights.

The SNP supports the inclusion of social rights, such as housing, education or a good environment. This looks appealing but such rights are hard to define and enforce. Since they require money to realise them, important decisions about priorities could fall to the courts rather than elected politicians. Such rights in other countries tend to be more formal than real.

Even if there is a No vote in September, there is a case for a constitution for Scotland. It could return to the principles laid down by the Scottish Constitutional Convention in the 1990s, addressing the excessive power in the hands of ministers, the need for better accountability and strengthening the role of parliamentary committees and backbench MSPs.

The referendum debate has engaged the citizens of Scotland to a remarkable extent and taken the issue out of the hands of the parties. Many people will want to keep up this momentum and increase the voice of the citizens against the political class.

Governments need a safety net

by Matt Qvortrup, Constitutional lawyer and referendums expert

Most parliaments in large countries have a second chamber or an ‘upper house’. Sometimes it is called a Senate (like in the US and France). But why have a second chamber? And should Scotland have one?

The chief advantage is that the Senate may check the haste and correct the mistakes of the lower house. In Germany, the Second Chamber (Bundesrat) sometimes threatens to veto laws if they are ill-considered. This threat forces the majority in the lower house to think again. Most small countries do not have second chambers the exception are small federations such as Switzerland and Austria. But there are other mechanisms to make the Government think again. In Denmark and in Slovenia, one-third of the members of the parliaments can demand a referendum before a Bill becomes law. This threat forces the majority to ‘correct mistakes’, and would work in Scotland.

Most democratic countries have written constitutions. The only countries without a written constitution are the United Kingdom, Israel and New Zealand. Opponents of a written constitution say they make the political process too rigid. For example, in the US the right to bear arms in the Second Amendment means that politicians were unable to introduce legislation to prevent gun crime although there was widespread support for this. What seemed reasonable 200-odd years ago may not seem quite so self-evident today. And, it could be argued, it is undemocratic that long-dead generations should bind the wills of those living today.

The argument for constitutions is that without restrictions a Government can make decisions that discriminate against minorities, start wars and abolish human rights. In the 1980s, Margaret Thatcher’s Government effectively changed the system of local government because many councils were run by Labour.

Scotland has the best of both democratic worlds right now

by Ruth Davidson MSP, Scottish Conservative Leader

Since devolution in 1999, Scotland has had the best of both democratic worlds. The Scottish Parliament has been responsible for our schools, NHS, justice system and most of our domestic public services. At Westminster, our vital interests in the UK economy, Britain’s global role and the way our Union functions are represented by Scottish MPs.

This stops if Scotland votes for independence. Yet, the SNP says it wants the most important economic decisions to remain in London. The Bank of England accountable to the House of Commons would continue to set interest rates. But with no Scottish MPs, we would no longer have any democratic oversight over this. Far from getting rid of a so-called “democratic deficit”, the SNP’s plans would just create more anomalies.

The unavoidable conclusion is the SNP want to end a democratic Union that has served us so well for 300 years because they are blinded by their sole aim of breaking up the UK. But the Nationalists are losing the big arguments on the pound, on defence, on EU membership and more and, as such, have retreated to stories about process. That is why there has been such focus by the SNP on a written constitution. Britain has a constitution, it is just not all written down in one place. Its great strength is that it has been built up over hundreds of years, allowing it to change as a new age demands new answers.

Constitutions are also there to provide a framework for government, not enshrine party policy in law. The SNP’s proposed draft constitution melds the two and in doing so shows just how cynical this proposal is. A more pragmatic approach is to improve democracy by strengthening and reforming our current institutions. Scottish Conservative proposals to strengthen devolution include a plan to give Holyrood’s party-dominated committees real teeth so they can hold the executive to account. Severing our democratic links to friends, family and businesses elsewhere in Britain just doesn’t make any sense.

Drafting our constitution will energise and inspire

by Nicola Sturgeon, Deputy First Minister

Scotland is one of the wealthiest countries in the world richer per head than France, Japan and the UK but for too many people in Scotland, it doesn’t feel that way.

Two reports published this week go some way to explaining why. One was a study showing that around a million people across Scotland are now living in relative poverty thanks to the welfare cuts coming from a Tory-led Government which Scotland overwhelmingly rejected. The other was a report from some grandees of the No campaign, backing a new generation of Trident on the Clyde, at the eye-watering cost of £4 billion a year despite massive opposition from Scotland’s people and Parliament. These are just two examples of how the democratic deficit in Scotland has a very real impact on our lives. Independence means we will always get the governments we vote for.

In an independent Scotland we’ll have a written constitution to define who we are and to set out the values that we hold dear. It is a cornerstone of Scottish democracy that sovereignty rests with the people. That’s why we want to make the drafting of our permanent written constitution an inclusive process involving all the people of Scotland articulating Scotland’s values, enhancing our liberties and defining our responsibilities.

We could choose to enshrine in our constitution the right to free education or the right to housing. Or we could place a constitutional ban on Scotland hosting nuclear weapons, sending a powerful statement to the world about the kind of country we want to be. But the very process of drafting our constitution will energise and inspire people in all the diverse communities that make up modern Scotland. It will be an exciting and unique opportunity to shape our nation, celebrate and protect our values and commit ourselves to building a better country.