By John Drummond
The SNP should start work on a constitution for an independent Scotland before the referendum or risk a shambles, says the chairman of the Constitutional Commission pressure group.
To paraphrase Justice Louis D Brandies:
"If we desire respect for the constitution, we must first make the constitution respectable."
Until the 1980s the British "constitution", despite its bizarre customs, arcane privileges and vague conventions, managed to maintain a certain respectability. Held together by cobwebs and flummery, it nevertheless carried us through the two world wars, a great depression, and the establishment of a welfare state, without collapsing into tyranny.
Written constitutions were not unknown. The UK actively supported the writing of the German Basic Law after the second world war, and was instrumental in the development of the European convention on human rights. Most countries to which Westminster gave independence were given a written constitution based on democratic principles.
But these innovations were for "lesser breeds without the law". We had no need of them. We muddled through on the "good chaps" theory of government, guided by an Oxbridge ruling class who, for all their incompetence and narrowness of outlook, at least had a strong sense of what was "not done". All very respectable.
This cosy (if stifling) arrangement was brought to an end by the Thatcher government. The British "constitution" was revealed for what it was – a flexible arrangement for the exercise of power. The unwritten constitution is whatever the prime minister of the day – with a working majority – deems it to be. This lack of a stable, fundamental, point of reference results in the triumph of expediency over principle and of prejudice over reason.
A British constitution worth respecting would require a fundamental change. It would have to reverse the principles of the state, from one where authority is vested in the crown and descends begrudgingly down to mere commoners, to one in which authority rests in the people and is exercised by their freely elected representatives and officials according to a written constitution which protects the democratic rights of citizens from the expediency of incumbent majorities.
There is no appetite for such a change. Constitutional tinkering since 1997 has been piecemeal, unprincipled and half-hearted. The result is a shambles.
Nowhere is this shambolic approach more noticeable than the attempt by the British state to solve its "nations and regions" problem. Last month, Elliot Bulmer, the Constitutional Commission's research director, took part in a meeting at the House of Commons to discuss constitutional change. Convened by a Labour MP, the group consisted of politicians from other parties as well as various luminaries including constitutional experts. After some debate, Elliot put the question:
"Are we here to discuss democratic constitutional improvements in the UK, or just trying to outflank the SNP so that the UK can hold together for another generation or so?"
"Oh, the latter, of course," was the near unanimous reply. In obvious similarity to other empires in their last dying days, the aim is simply to keep the thing hanging together, and to use any fix to do so.
One of the advantages of Scottish independence is that it provides an opportunity for a new Scottish state to break from Westminster habits and to do things very differently. There is little point in swapping rule from Westminster for rule like Westminster.
The SNP has a long-standing (if quietly voiced) commitment to a written constitution for Scotland. This constitution would express what Scotland stands for and what it will not stand for. It would place constraints on ruling majorities.
It would be wise of the SNP to make more of their constitutional policy, and to highlight the differences between being a subject of the British state and being a citizen of Scotland. This would give a firm assurance that independence would build upon the democratic advances made since devolution: enshrining proportional representation, limiting prerogative powers, strengthening parliamentary and extra-parliamentary accountability mechanisms, and reinforcing our civil liberties and human rights.
For proponents of independence, a failure to "grasp the thistle" of constitutional design, ahead of a referendum, would be a mistake. It would enable opponents to claim that independence would be hazardous, as it would hand over indeterminate power without any thought of the consequences. In short a blank cheque.
In Scotland at this time it is possible to choose between the shambles and the blank cheque. And it is important to start the process now; to facilitate this crucial discussion, the Constitutional Commission has produced a Model Constitution for Scotland, published by Luath Press, that offers a starting point for debate.
Postponement increases the danger of ending up with a poor quality constitution. This ought to be a matter of priority for the Scottish government, and for all independence supporters. It is crucial that a broad political and public consensus around an agreed constitutional text takes place before a referendum. It also ought to be important for those who oppose independence but who, if it were to happen, want to make it work.
Courtesy of the Guardian newspaper - http://www.guardian.co.uk/uk/scotland-blog
Next Thursday 28th June, a distinguished panel including Lesley Riddoch, Patrick Harvie, Gerry Hassan, Elliot Bulmer and Mike Small will hold a discussion on what a future reconstituted Scottish state might look like. This event, to be held in the Scottish Parliament in front of an audience of 100 people, will be filmed and a video will be made available to Newsnet Scotland and other outlets a few days later.