Should an independent Scotland have a constitution – and if it should, what sort of constitution might that be; and how might it come about?
The For Argyll team is, as usual, providing individual – and independently produced – perspectives on this to get the debate going. This time Charles Dixon-Spain has stepped back in favour of a guest contributor we invited to write on this – the reader who posts comments as ‘Integrity’.
John Patrick on the imperative of a written constitution
The United Kingdom has no written constitution and is one of only three democracies in the world including New Zealand and Israel not to have taken the plunge.
In the last 25 years, more than 20 countries have become independent sovereign territories; and each one has a written constitution.
The UK instead has a set of basic documents, passed by Parliament (English Bill of Rights, Magna Carta, the Petition of Right, Habeas Corpus Act 1679 and Parliament Acts 1911 and 1949); which, in collection, function in a constitutional capacity.
Since the Glorious Revolution, the bedrock of the British constitution has traditionally been the doctrine of parliamentary sovereignty, according to which the statutes passed by Parliament are the UK’s supreme and final source of law. Parliament can change the constitution simply by passing new Acts of Parliament.
In the event of a ‘YES’ vote in September 2014 the SNP government are proposing that an independent Scotland should have a written constitution which expresses our values, embeds the rights of our citizens and sets out clearly how our institutions of state interact with each other and serve the people. They intend to publish a draft copy for consultation before the summer recess.
There are four reasons why Scotland needs a written Constitution.
Firstly, a new Constitution provides the opportunity to further reform our democracy away from the Westminster Model, in favour of a more Scandinavian model characterised by greater power-sharing, decentralisation, openness and accountability.
Secondly, a written Constitution is necessary to provide legitimacy to the new Scottish State.
Thirdly, this distinguishes between a higher, constitutional law approved by the people and a lower, ordinary law made by Parliaments.
Finally, a written Constitution will not be an optional extra. European and world opinion would make the adoption of a written Constitution necessary.
Others will argue, if its not broken why fix it? Also that a constitution will straitjacket us within the entrenched written arrangements which we will be unable easily to talk about and make the sort of piecemeal changes available to parliament today by simply passing new Acts.
But the fact remains, most democracies in the world have a written constitution and manage as well, if not better, than the UK model.
‘Integrity’ on a codified or uncodified constitution
I should preface my article by making it clear I am neither involved in the legal system nor have any legal training. Therefore my opinion is purely personal, in no way professional, and inevitably misses many valid arguments. I have tried to find a balance between providing enough content and not making it a contender for Dostoevsky post of the year. I probably failed. It is not intended to be an argument for or against independence, but more of a consideration of what Scotland should do in the event of a ‘YES’ vote.
One key issue which will be subject to public consultation in the event of a ‘YES’ vote in September is the content of a new codified Scottish Constitution. Interestingly one of the often quoted reasons for the UK not having a codified constitution is that there are no sea-change moments in our history [such as revolution or colonial independence] where the adoption of one would be a ‘natural’ consequence. Given this, it is understandable that the adoption of a constitution, post-independence, is on the table. However, what hasn’t been widely debated is whether it is necessary. This article attempts to consider the pros and cons of adopting a codified constitution and consider whether Scotland would be better served by maintaining an uncodified approach as currently adopted by the United Kingdom.
A constitution is the set of rules which establish the duties and powers of government and establish the framework within which the state, its public bodies and the electorate exist. There are many different options, however, generally classified as either ‘codified’ or ‘uncodified.’ A codified one is where the constitution is written within a single document [the US being the most obvious and well ‘publicised’ example]. An uncodified one is one where the constitution is formed through rules, laws and regulations, the source and documentation of which are various and fluid.
The fundamental difference between the two types of constitution is that, from a legal perspective, a codified one is authoritative and an uncodified one is not.
This makes a codified constitution very inflexible with its core provisions becoming a code for the country to follow, irrespective of change in government, culture or societal shifts. Although not definitively rigid, they can create an inertia where a country struggles to adapt in an ever changing society. Gun control, or lack of gun control, in America being the most obvious and most quoted example. More generally, and worth keeping in mind, is that the American constitution was adopted 225 years ago, amended 10 times in the first two years [the Bill of Rights] and has been amended a further 17 times to reflect items such as abolition of slavery, the right to vote and equality.
I mention this to illustrate the point that constitutions are not necessarily written in stone from day one – there is scope for change. It is questionable, though, whether that scope is sufficient. However I do not want to labour the American Constitution as a case study, a constitution written in the modern day would be a different beast to an archaic one written in the late 18th century.
Uncodified constitutions, by their very make up, are more flexible and subject to change through the application of law and political policy. This leaves sovereignty with the parliamentary body of the age meaning the legislative body may change or repeal any previous legislation, and is not bound by written law.
In having an uncodified constitution, the UK is very much an outlier. New Zealand and Israel are the only two other countries in the world to have an uncodified constitution. However being an outlier, even to that extent, should not, by default, be considered to be wrong.
There are obvious arguments for adopting a codified constitution. It is certainly more ‘simple’ and creates a society where there is greater clarity over law and policy and the enforcement of them. The public would understand how government works much better than they currently do and may even be more engaged in politics than they currently are. It also reduces the extent to which changes in government can result in fundamental change and thus provide for more accountability of parliamentarians for conformance to a national ‘manifesto’ or the established core values of the country. This conformance would be monitored/assessed by the legal system thus diluting the power of parliament. However one could also argue that representatives of the legal system should not play the role of arbitrator, as they are appointed rather than elected. Another key argument in favour is the clear definition and protection of individual rights. A codified constitution establishes the freedom and rights of the individual [something you often hear quoted when the American one is discussed].
Arguments for an uncodified one have the increased flexibility at their core. There is a defined process in the UK to introduce an Act of Parliament and, with an uncodified constitution, this Act, if passed, becomes part of the adopted constitution.
This makes it far easier for a nation’s constitution to remain relevant and adapt within a dynamic society where social, political and economic factors are rarely constant. This flexibility also means that democracy has a much greater influence how a country is constituted. Removing Parliamentary sovereignty, as mentioned above, transfers powers from the Parliament and House of Commons to an unelected legal system which is also responsible for a constitution’s interpretation. This creates a conflict of interest within the legal system as judges get more drawn into the arena of policy creation.
An obvious future example of the enhanced flexibility of an uncodified constitution could be future removal of the House of Lords, or women inheriting the throne. Under a codified constitution this would be almost impossible but, with an uncodified one, there is a route whereby this could happen [in the same way the powers of the House of Lords were reduced in years gone by]. This democratic influence is extended through the fact that elected parliamentarians, at the current time, can introduce, amend or remove laws rather than current society being bound by a set of rules over which they may have had no influence or input. Whilst codified constitutions can be subject to interpretation to better reflect modern society these interpretations will inevitably be subject to challenge.
I recognise there are key pros and cons to both arguments and will try and further illustrate this fact through two modern day examples.
An uncodified constitution does inevitably result in huge amounts of power resting in the government and this can be open to abuse. For me, a perfect example of this [and I appreciate not all will agree] is Tony Blair taking the country into the Iraq War. There were clearly insufficient checks and balances in place to prevent him – and his government, committing us to a war which many felt we should have been nowhere near. However, equally, the ability of a powerful government to mobilise its resources rapidly in the event of a global or domestic situation can be very important [and not just in military situations].
The other example is Obama’s Healthcare Reform. In my opinion this could be Obama’s great legacy. A fundamental change which will provide massive benefit to people across America, people historically neglected by the countries healthcare and healthcare insurance. The implementation of this has stalled due to the constitution make-up of the US which places the President and Congress in conflict and allows the Republicans, exercising their constitutional rights, who see the reform as excessive state intervention in the private medical sector, to prevent the bill going through.
My overall view is that an independent Scotland should not adopt a codified constitution and certainly not at a time of such political and social upheaval.
I prefer the power of scrutiny and challenge to lie with an elected Parliament rather than unelected judiciary system. Any dilution of democracy within our political system is a step backwards.
Lynda Henderson on a constitution of guiding principles
The purpose of a constitution is to lay down the framework within which a nation will govern itself; and perhaps to describe the guiding values it has chosen to adopt and which produce the practical delivery frameworks it may include.
Not to have a formal written constitution – as is the case with the United Kingdom – does not mean that anything goes.
A country, over time, creates a sub-formal constitutional framework through the nature, powers and limitations of the institutions it establishes; and through the body of law it enacts. These add up to an uncodified constitution.
The question is about the pros and cons of a formal written – or codified – constitution.
The arguments for this centre on clarity and conscious specific commitment. The arguments against it are concerned with the possibility of an over rigid and an over-confining constitution which is unresponsive to change and which binds governments too tightly.
It is, though, possible to have a constitution which is written but is more of a set of principles, holding back from becoming a codified guide to the implementation of such principles in practice. This implementation would be achieved and re-tuned over time through the developing institutions of state and through the creation, repeal and amendment of laws and of the constitution itself.
The profound value of a written constitution is that it demands an emerging nation to do some or all of the following things: to aspire, to affirm, to frame, to expect, to confer, to limit and to renounce.
It allows – asks – a nation to start by talking to itself and about itself, about what it believes it should be and should not be; should do and should not do.
The concern over binding future governments too tightly ought not to apply in a written constitution which is chiefly concerned to describe the principles which will guide the state into the future.
There is one area of very real difficulty.
The rule of law defines a civilised society, where a people agree on ways in which – and the degree to which – individual liberties require to be limited in order to shelter others from harm.
A constitution therefore needs in some way to enshrine the ultimate authority of law – while leaving room for citizens to challenge illiberal laws potentially put on the statute book by an illiberal government – without themselves being criminalised by their protest.
How this limitation on the rule of law itself can be described and proscribed is hard to conceive – but a good constitution needs an effective statement of principle that covers this scenario.
An example of such a law is the Serious Organised Crime and Police Act of 2005, enacted under Tony Blair’s regime by Home Secretary David Blunkett. This extended significantly and made more simple a police officer’s powers of arrest; and introduced substantial restrictions on political protest of any kind in the neighbourhood of the Palace of Westminster.
Maya Evans was arrested and charged under this Act simply for reading aloud within the specified area of Westminster the names of British soldiers who had lost their lives in the war against Iraq.
We all therefore have recent experience of the abusive situation described here, from which the people need the protection of a constitution.
This is the genuine need for shelter a constitution offers, alongside the exhilaration of the aspirational and the affirmatory, which are the eternal beacons an inspiring constitution can lay down.
A constitution formally committing a nation to a set of guiding principles would seem a powerful positive.
