Will Scotland have its constitutional moment?

The constitutional expert, Vernon Bogdanor, observes that one reason why Britain has never adopted a written, or codified, constitution is that unlike many other democracies, Britain has never enjoyed a ‘constitutional moment’. A point, which in many states followed revolution or independence, at which it was considered natural to write down the key principles on which the state would be governed. However, if the Scottish people vote for independence in September 2014, Scotland, and arguably the rest of the United Kingdom as well, will be faced with just such a constitutional moment. In preparation for this, earlier this year the Scottish SNP Government published proposals for the post-independence adoption of a written constitution for Scotland.

The short paper also deals with the two problems identfied by Bogdanor in drafting a written constitution in modern Britain: what will be its scope and who will be responsible for drafting it.  To take the latter first, the Scottish Government proposes that a written constitution should be drafted after independence under the auspices of the Scottish Parliament, which will be responsible for devising the process and timetable for drafting the constitution. However, it also makes clear that ‘the creation of Scotland’s written constitution should engage all the people of Scotland in the process of nation-building and allow them a say in defining how our country will work.’ In order to do this, it proposes the creation of a constitutional convention, to some extent modelled on that which drafted the US constitution in 1787. Although it states that the composition of the convention should be decided by the Scottish Parliament, it does suggest that in addition to politicians and the people, it should also include civil society organisations, business interests and trades unions, which is a somewhat more inclusive approach than that adopted by the framers of the US constitution. The paper is less clear about the scope of a written constitution, but here again there are some markers.  Rather like the US constition it is clear that these proposals are designed as a reaction against the Westminster model which it claims has allowed governments to make major decisions, such as going to war, without proper challenge. Another similarity with the US model is that the proposed constitution should not simply be designed to codify how the institutions of state interact with each other and with the people, but that a Scottish constitution should also include a statement of Scottish values.  Interestingly although these values are not defined in any great depth, in an oddly prescriptive passage, it does suggest that they ‘will’ include, provisions to strengthen individual rights in areas such as homelessness and education; the prevention of weapons of mass destruction being based in Scotland; and somewhat paradoxically, measures to prevent the government from engaging in illegal wars. These all seem like interesting ideas but whether or not they are values, and Scottish values at that, seems a rather moot point, but if one is proposing to consult on drafting a written constitution it is perhaps a good idea to get your suggestions in first. Whether any of this will ever happen, seems unlikely but it is an interesting example of a modern British approach to constitution writing.

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