Anyone humphing about the First Minister going to London to tell us that we could have a written constitution in an independent Scotland and to pose suggestions about what such a document might contain is missing the point.
It’s all part of the staging as part of the narrative in the SNP’s part of the Yes campaign and suggests that at last, the party is getting to grips with its role in this crowded marketplace. While the day to day of progressing the process, as well as presenting the ever-growing reasons not to stay in the Union, sits firmly with Nicola Sturgeon as our Yes Minister, the First Minister is freed up to play fully the statesman role which he loves and performs so well. His is a big blank canvas on which to paint the vision for an independent Scotland.
As for the going to London bit, that’s about him going “abroad” to represent Scotland and her interests on a wider stage, reassuring nervous persuadables about post-independence concerns, such as borders and relationships. See, here is our leading politician going south scattering bon mots like rose petals and receiving a warm welcome. And they didn’t even ask to see his passport.
There was a lot to like, too, about the content of the First Minister’s speech. It didn’t seek to presume that the SNP would control the policy process, the idea of a written constitution wasn’t presented as a done deal, and it had a lot to offer in terms of what might be there, while pointing up neatly the difference and the potential benefits everyone living in Scotland might enjoy if they vote yes. Unlike currently, of course, which the First Minister wasn’t shy to hammer home, where with an unwritten constitution, rights are a moveable feast and citizenship is a concept predicated on the convention that people who live on these islands are subjects who will put up with what politicians serve up to them.
However, I’m not sure floating the idea of a written constitution as a possible rather than a probable or even, a definite outcome for independent Scotland is the right approach. It’s taken me a long time to see the importance of having such a touchstone in place for our country, even though I can identify with its benefits for addressing inequality and injustice. Now, I consider it an absolute essential. Without a rights based approach and such an approach being enshrined in founding legislation, as well as detail setting out the institutional infrastructure for our country, there is a risk that we end up exactly where we are now.
A written constitution is required to set out what kind of country we will be, how we will govern ourselves, how we will ensure that all our citizens are provided for and how we will realise our potential. Without it, we would be as subject to the vagaries and flim flam policy initiatives of politicians and political parties as we are now. If independent Scotland is to deliver a whole new way of being and doing, then our pathway and culture must be embedded from the start.
And I’m also sanguine about the process of preparing a written constitution suggested by the First Minister and followed through on by Andrew Wilson in this week’s Scotland on Sunday. The idea that “a cross-party commission of the best” should write our written constitution fills me with dread, for this process is too important to be left to the politicians, particularly if we want to use it to sweep away institutional hierarchies and vested interests.
If we are to use the opportunity of writing a constitution to create the beginnings of a better nation, then that process must be owned and driven by the public. And Iceland’s recent crowdsourcing experiment for new constitutional provisions demonstrates not only that this could be done but that it can be done, and rather successfully.
I don’t want politicians nor indeed, academics to disappear behind closed doors to come out months later brandishing a finished draft. No one will own or feel responsible for such a document. I want all of Scotland to feel part of the process and when they get to the end of it, feel that we, collectively, have produced a constitution which sets the tone for the years to come. This is not to suggest that the actual wording of a constitution should be determined by a committee of five million – we’d never get beyond the first line. But the general thrust of the content should be determined by the people.
Thus, my own preference would be for a written constitution which sets out the rights of the people – our fundamental human rights – as well as how the apparatus of the state might work. On the latter issue, for example, a key consideration is what type of legislature to have. Different options could be set out and people asked to vote for their preference. The result of that vote would bind how the drafters would proceed.
And on the issue of rights, as the First Minister suggested, we might want to go further than basic human rights such as the right to vote, right to freedom of association, right to liberty and create constitutional policy rights, covering matters such as education, housing and nuclear weapons. I’d like to see us enshrine the rights of children through the UNCRC in a written constitution, ensuring that children and young people have, for example, a right to play and to be treated equally under the law, as well as setting out things like the age of criminal responsibility, capacity and adulthood in our founding document. And I’d also like a commitment to gender equality enshrined in our constitution – starting over from an equal footing would do much to create a very different Scotland from the one in which we all currently live.
With his speech, the First Minister has signalled a vital shift in focus, that of starting to imagine the possible and as he puts it, the “why” of independence. It would be great if it kickstarted discussions all around the country – in workplaces, homes, clubs, pubs, on trains, buses and planes. What kind of Scotland would you like to live in and how could we provide for that in a written constitution? It’s only by taking such fundamental policy debates down to grassroots level and out of the hands of the parties and the politicians, that we will enable people to see what independence offers and persuade more of them to at least, start thinking about voting yes.
And if yes-supporting politicians want a role at this stage, they could press Better Together on why remaining in the UK and not having a written constitution guaranteeing our rights is in anyway better for us.
Anyone wanting to see some draft options for a written constitution, and samples from other countries, should visit the excellent Constitutional Commission’s website