| Some thoughts on a Constitution for Scotland |
| History tells us that certain developments appear inevitably. One of these developments, I think, is the political independence of Scotland as a country, not if but when. In the run-up to that it is good statesmanship (m/f) to do the preparatory work for its legal structure. A written constitution is a solid foundation for the new state. That offers a unique opportunity to draw up a document with articles for a new country, highly developed and already with a history of centuries. It is a chance not to just copy the UK example but to take all the other constitutions, constitutional ideas and the specific Scottish situation as sources from which a whole new constitution can arise. Scotland itself already has contributed to this with the Declaration of Arbroath from 6th April 1320. With all this in view and mind a constitution that enshrines freedom, civil rights and duties, social justice and mutual responsibility will be the foundation of a country where its people can thrive. This short essay discusses several building blocks that make a strong constitution such as people and territory, sovereignty, polity, form of government, institutions, civil rights and duties, and with Scotland in mind. |
| A constitution is a founding document for a group of people in which is described how their affairs are organised. It can be any group of people but usually it is a declaration of a country with a territory and inhabitants. Nearly all countries (UK and Israel have an unwritten constitution) have such a document and it functions as the source and benchmark for all other laws; no Law can contradict the Constitution. Broadly speaking, the constitution describes how the country is organised with its citizens and its institutions but leaves that of the daily life to the laws. The constitution sets the tone, who will be the Government, who will be the Head of State, who are the Citizens, who makes the Rules and who are the Judges. The constitution determines what kind of a country it is. Is it democratic or autocratic, does it respect the Rule of Law? Finally, but not of least importance is the determination where the authority for making a constitution is coming from. Scotland, with its own tradition, can refer to the Declaration of Arbroath, which is a request to the Pope to sanction the freedom for ‘the whole community of the realm of Scotland’ as an independent country.1) It serves as an inspiration for the Sovereignty of the People as the authority of the Constitution. That gives a clear statement. The People of Scotland are the highest political authority from whom all power is derived. The sovereignty over a territory does not originate from the power of its people but from the power of the surrounding countries that recognise the self-proclaimed authority. |
| A country is a territory with a nation in it. We know that the boundaries can change over time, there are enough examples in history. These boundaries are easier to describe for an island nation than for a continental country with pressures and claims from all sides and cross-border affinities. But who are the People of Scotland? To make it easy that includes all the persons that reside in Scotland (all persons with a Scottish passport and all the non-Scottish passport holders who have made Scotland their residence). It is better to include than exempt as the latter always leads to difficult discussions. All these people have a stake in the present and future affairs of the country. So, all these people together are the nation’s Sovereign and all and everything in the country must live by the Sovereign’s rules. |
| A country is more than sum of the territory and the inhabitants, just as an orchestra is more than all the musicians and the instruments together. The inhabitants come and go, are borne and die, boundaries shift, but Scotland will always be Scotland. A Sovereign State of Scotland is one of similar countries in its region (as wide as the world) comparable to neighbouring families, each with their own members in their own house. These states are not something on paper but are all kinds of social structures and institutions to make it a vibrant country where its inhabitants can live safely from inside and outside danger. Some of its inhabitants are running that country. They are the Government, the Executive. Being in control of the institutions comes with power but the Executive is not the only power in the country. In most countries the power of law making is embodied in the Legislature, mostly or exclusively the Representatives established in the Parliament. A government must adhere to the law, just as all institutions and any other individual inhabitant of the country. The extend of the power of a government is limited by the outlines set in the laws originating from the Constitution. How these outlines translate in actual policies, is assessed and reviewed by legal experts, judges, who form the Judiciary. The political power in a country is spread over these three, Judiciary, Legislature and Executive. The independent Judiciary is the guardian of the Rule of Law. We know since the French philosopher Charles de Montesquieu that a separation of these powers is the best safeguard against dictatorship and oppression.2) This is best guaranteed with a constitutional stipulation of the competences and that officials working for the State are not simultaneously doing so for more than one of the three powers. It keeps the power between Legislature and Executive in balance. |
| The Head of State can be also the Head of the Executive or just a ceremonial official. When the People are Sovereign the appointment and position of a Head of State is enshrined in the Constitution. Whether this is an individual person or a family with rights of succession, is also for the Constitution to determine. It is worthy of note that modern day Constitutional Monarchies appear to offer a political stability not always seen with those of their ancestors nor in that of Republics. The choice is the Sovereign’s. |
| So much for the organisation of the state and how the power is distributed over its organs. It does not necessarily give a desirable outcome for the inhabitants. The democratic form of government is seen as the best way to achieve a just society in which the people can live in peace and with equal opportunity to have a dignified life. Democracy is the method, a good life the aim. Democracy is more than a voting result of 50% plus 1. A definition is difficult to give. It is best described by its attributes. In the words of the American President Abraham Lincoln: democracy is the government of the people, by the people and for the people. A country is not yes-or-no democratic but can be judged as having achieved a certain level or grade of democratic governance. That comes to expression in how the country is organised and functions in its political and social institutions. A list of most of characteristics of a constitutional democracy is: |
| But democracy is more than just a list. It is the ‘community of the realm of Scotland’ where the people can live in peace with one another, irrespective of religion or no religion, with all different social and cultural traditions, respect for each other’s individuality. In a socially just society, the people are democratically governed, with a fair and equal opportunity to participate and contribute to the general wellbeing. This is an open description of the meaning of democracy and no doubt in some future this will be slightly different with some more characteristics. For instance, the opportunity to learn playing a musical instrument from a young age or the opportunity to join a sporting club, could well be seen as a fulfilment of social justice. It is up to the Sovereign People to uphold the Constitution make this all true. |
| 1) Cowan, Edward J., (2003). For Freedom Alone. Edinburgh: Birlinn, pp.146-9.
2) Montesquieu, Charles (1748). l’Esprit des Lois (The Spirit of Laws). on WWW. |
| Text by dr Willem van IJperen addition to CfS comments feel free to copy 24/10/2021 |