Before Scotland’s referendum, voters have a number of crucial questions to ask themselves.

Written constitutions are borne out of revolution, not evolution, or so the saying goes. Whilst the Scottish independence movement cannot be easily characterised as either, it has become a position in great vogue in the ranks of its proponents that an independent Scotland would naturally draft and ratify a codified constitution.

Is it Necessary?

Debate has raged for decades over whether written constitutions are necessary or desirable. Lord Hailsham in The Dilemma of Democracy famously argued for a new constitutional settlement based on a written constitution setting out clear legal limits “beyond which politicians may not be allowed to go”.

Only two years later, however, the distinguished constitutionalist John Griffiths was insisting the political ideal of a “society in which government is by laws and not by men” that Lord Hailsham had sought to create was “unattainable”. “Written constitutions,” he said, “do not achieve it. Nor do bills of rights or any other devices.” All of those, he said, “merely pass political decisions out of the hands of politicians and into the hands of judges.”

The very idea of a written Scottish constitution, then, should hardly be an uncontroversial one – and nor it is. Indeed, Alistair Darling MP, the leader of pro-UK campaign Better Together, has publicly stated he is “innately suspicious” of such documents.

By contrast, the Scottish government is seemingly resolutely committed to the notion. In its recent publication, Scotland’s Future: From the Referendum to Independence and a Written Constitution, the Scottish government openly states its dedication to “putting in place a modern written constitution that embodies the values of the nation, [and] secures the rights of citizens”. Simultaneously, Hailsham rejoices and Griffiths despairs.

That there will even be a written constitution is apparently a given: the Scottish government’s settled policy is one of codification.

Such a decision is, however, not one to be taken lightly – and it is certainly not one to be made without any public consultation whatsoever on the matter as the Scottish government has done. That it has made a decision on such a fundamental facet of Scotland’s constitutional future in this manner is, to many observers, seen as a worrying harbinger for the future.

What Will it Contain?

If there is significant disagreement over the very form of an independent Scotland’s constitution, we should expect no less controversy over its content.

The Scottish government does, however, seem receptive to some degree of public consultation and discussion on the rights and liberties that may be enshrined in an independent Scotland’s constitution.

In January of this year, First Minister Alex Salmond MSP broached the matter of constitutional content directly. He announced an independent Scotland’s codified constitution could contain a veritable smörgåsbord of fundamental rights: the right to a home; the right to free education; a constitutional ban on nuclear weapons; and the entrenchment of “safeguards” to prevent Scottish armed forces engaging in illegal conflicts.

Barely two months later and Salmond’s deputy, Nicola Sturgeon MSP, added to his wish list when she told local authority representatives to rapturous applause that their place in the Scottish political landscape “should be entrenched in a written constitution”. Talk about playing to the audience.

On both occasions detail was, true to form, thin on the ground with concrete questions – ranging from the basic to the intricate – remaining characteristically unanswered.

Would Scots be hamstrung by their constitution to providing prohibitively expensive university education to all Scottish school leavers? Would the state be forced to provide a house for every aspiring homeowner currently priced out of the market? Or would the state’s duty extend only to those in abject penury? Would a codified Scottish constitution entrench a formal principle of subsidiarity, as the EU Treaties do? Or would the extent of local authority protection merely extend to preventing wholesale abolition by central government?

To describe the first and deputy first ministers as “broaching” the issue of the constitution’s content, however, may have been too kind. “Revisiting” was closer to the mark. Many of the “groundbreaking” and “radical” rights proffered as candidates for entrenchment looked suspiciously similar to those outlined in the SNP’s long-forgotten Draft Scottish Constitution, published back in 2002. Reinventing the wheel had never seemed so revolutionary.

On the local government front, Article IV of that Draft Constitution does guarantee the “genuine autonomy and freedom from interference by central government” for local authorities – but only within certain areas of competence entrusted to councils. Furthermore, an independent Scottish Parliament would still have “power to legislate generally for local government”. One is left with the distinct feeling of a constitution taking with one hand what it gives with the other. By contrast, Scotland’s Constitutional Commission has suggested councils should have powers devolved to them “in accordance with the principle of subsidiarity”.

When it comes to education, the SNP’s 2002 text provides everyone would have “the right to education for the optimal development of their abilities and potentialities” – but only if it was “within an acceptable level of overall cost”.  If the devil of anything is in its detail, the devil as to what that “acceptable level” would in fact be was conspicuous only in its absence.

Article VI of the same document also provides “everyone has a right to housing” and that “no person is [to be] involuntarily deprived of adequate shelter and living accommodation”, but again fails to give any indication of the ultimate scope or actual content of such rights.

Nor does the 2002 wish list stop there. Its sprawling socio-economic promises include a right to “reasonable alternative means of subsistence” if suitable employment is unavailable; for pensioners to have sufficient resources to “maintain [their] dignity and independence”; and for everyone to have access to “reasonable health care to secure wellbeing and human dignity within an acceptable level of overall cost”.

Of course, whether that dusty ten-year-old document takes us any closer to discovering the content of an independent Scotland’s written constitution is debatable. After all, its second page states “the SNP is committed to holding a referendum… on whether to retain the monarchy” – a policy that has been long since kicked to the kerb. Even if it tells us nothing about what an independent Scotland’s constitution may look like, it at least serves as a reminder that a lot can change in ten years.

However, with the SNP as the party of government during any process of constitutional drafting following a “yes” vote, coupled with the public pronouncements by the first and deputy first ministers, it seems safe to assume the majority of these rights would be replicated (in substance if not verbatim) in a codified constitution in an independent Scotland.

Unanswered Questions

Such prospects raise four broad, sequential, questions for consideration that are all neglected in, if not absent from, Scotland’s current constitutional debate – and they all deserve, indeed require, greater attention if a codified constitution is not to become yet another pawn in a partisan constitutional debate, or yet another vehicle through which politicians can vie for popular support by pledging more undeliberable bribes to the electorate.

First, we need to ask whether we are content in principle with the principle of a written constitution. Whether we think it is right in principle – or prudent in practice – to cast in stone for decades, even centuries, to become a snapshot of Scotland’s political landscape at a time of significant social, economic and constitutional change.

Second, if we are, we need to ask whether we are happy with that constitution incorporating extensive socio-economic rights such as those suggested (past and present) by our current political leaders.

It would be one thing for a Scottish Constitutional Court to strike down an act of an independent Scottish Parliament because it was adopted by an incorrect procedure. However, we as citizens need to be asking ourselves whether we really want lawyers and judges to be deciding what constitutes “affordable” education, “adequate” shelter, a “reasonable” level of welfare, or a “sufficient” pension. And we as voters need to seriously consider whether we think a system of government which passes such acutelypolitical decisions out of the hands of those elected to make them in the first place is an effective, or even moral, one at all.

Thirdly, we need to ask whether a written constitution will actually deliver the outcomes proponents of codification think it will secure? We live in, and will do for the foreseeable future, a country where the scope for radical socio-economic change and intervention is significantly hampered by the hangover left from the fiscal profligacy of governments past. Regardless of how good it makes us feel to promise homes and ever-increasing pensions to everyone in our fiefdom, if there is not enough money in the bank to pay for it, the morality of the matter is rendered somewhat otiose in an eminently practical political world.

International and national courts are, and have been, acutely aware of this for some time. Even during those halcyon boom-time days, when it came to rights with serious cash implications, both national and international courts nearly always yielded to the government’s assessment of what a codified right required.

If (as seems probable) deference is to be the dish of the day and a court is unlikely in practice to tell a cash-strapped government its determination of what is “affordable” when it comes to the right to education, or what is “adequate” when it comes to the right to housing, the question must be asked whether the mere codification of those very rights themselves is anything other than a token gesture in populist realpolitik.

Finally, and most importantly, we need to be asking, if the SNP as a party of opposition working out of what has been described as a glorified garage-conversion-come-office could cobble together a draft constitution ten years ago, why on earth can’t they do the same now as a party in majority government with the entire machinery of the Scottish civil service at their disposal.

For the Scottish people to have nothing but bland assertions in sensationalized speeches made on the back of rehashed decade-old policies upon which to base public debate on the shape, form and content of an independent Scotland’s constitution with little over one year to go until the referendum, simply beggars belief.

The SNP’s failure to provide considered, measured and concrete proposals on this crucial facet of Scotland’s future is not befitting of a serious political party, and it is certainly not befitting of a serious Scottish government.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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