Podcast: Elliot Bulmer on the need for a Scots constitution


First Minister Nicola Sturgeon may be planning a “reset” on Scottish independence, but what does that mean for those who support the idea? Is it a campaigning reset, mainly to do with the timing of a second referendum, or something more fundamental?

Dr Elliot Bulmer

Dr Elliot Bulmer, former research director of the Constitutional Commission, argues that the drawing up of a formal constitution for a proposed independent Scotland would be a good place to start. He believes that without a written vision for how a future Scotland might be run, people will continue to struggle with the concepts behind the independence argument.

Speaking to podcast host Derek Bateman from his current base in Amsterdam, Bulmer – who authored “A Model Constitution for Scotland: Making Democracy Work in an Independent State” – states the case for a formal approach to independence.

[This interview was conducted via Skype and the results may sound a little compressed]

You can tune in by clicking on the audio file above, via your usual podcast channels including iTunes, or using our RSS feed: http://www.buzzsprout.com/57229.rss

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  1. Really interesting discussion , lots to think about. His blank cheque analogy is very pertinent to where we are now. SG needs some big game changers and soon , this could be one . Could you make a condensed version of this to get it out there more , it would lead to more listens and more support for , what is , a bloody good idea.

  2. It’s the sort of thinking we need to see developing within the Yes movement. Too much rigid sticking to the party line these past two years (understandably, to a point). Yes needs to achieve broad consensus and it will only do so by inspiring people and bring upfront about what independence means and how it would benefit Scotland.

    The level of debate in Scotland – from all sides – makes me despair at times.

  3. There is already a draft constitution, requested by Alex Salmond et al, in 2014, prepared by Dr. Mark McNaught with input from Scots for indy. This piece is a day late and a dollar short and obviously doesn’t have all the information.

    • I’m very aware of the work that has already begun on this subject. It’s just not possible to discuss everything in a half hour conversation.

      Although a start has been made, there’s still a lot to do. The texts that have been produced so far are, at best, merely suggestions, or perhaps educative tools to help people think through these issues in a more concrete way. They don’t – with perhaps the exception of that produced by the Scottish Government in 2014, which is now a historical artefact rather than an expression of current policy – have any official status.

      There are several such drafts in circulation, most notably the ‘Model Constitution’ which I prepared in collaboration with others under the auspices of the Constitutional Commission in 2011.

      I was at dinner with Alex Salmond in Bute House in 2013 when what became the Scottish Government’s 2014 draft Interim Constitution was discussed. I worked with the Scottish Government on that draft, although only sporadically since they were not very open at the civil service level to the help that they obviously needed. The 2014 draft was go old in parts, and I wrote in defence of it at the time as a step in the right direction, but it had several crucial weaknesses that really made it unsatisfactory.

      Mark and I have collaborated at various points. He has some interesting ideas, although on balance I find some of them a little far fetched. I tend to prefer slightly more tried and tested constitutional models.

      If you’d like to find out more, I’d recommend my books:

      ‘A Model Constitution for Scotland: Making Democracy Work in an Independent State’ (Luath Press, 2011),

      ‘A Constitution for the Common Good: Strengthening Scottish Democracy after the Independence Referendum’ (Luath Press, 2015)

      ‘Constituting Scotland: The Scottish National Movement and the Westminster Model’ (Edinburgh University Press, 2016).

      Best regards,

  4. Cheers Elliot. Very interesting conversation on a subject of obvious national importance. My question would be how does a Scottish government square with the electorate the spending of time and public money on a constitution (or a bank or as currency) for an independent Scotland after losing the vote in 2014?

  5. This was a fascinating and thought provoking discussion and perhaps something that most of us have not given sufficient consideration before, so thank you Elliot and Derek for sharing this.

    I have 2 questions:

    1. what can the public/voters can do to put pressure on the political parties and accelerate the process of getting a constitution before Scotland becomes independent?

    2. In the event that a constitution is drafted before Scotland becomes independent, what is the likelihood that it could be enforced even before Scotland becomes independent? In other words, does Scotland need ‘permission’ from Westminster to enact that constitution and why?

    Many thanks.

    • I am sure Elliot will correct me, but as the Constitution is specifically a “Reserved” power, any draft Scottish constitution wouldn’t be enforceable unless either Westminster approved it (highly unlikely) or Scotland said YES at ScotRef2 and it was introduced in the negotiation period between a YES vote and formal Independence.

      I think this is a fundamental issue. One of my major frustrations with IndrRef campaign (to some extent from BOTH sides) was that the key principle of “Who Decides for Scotland” became sidelined into pointless debates about specific policies. The whole point about Independence is that the Scottish voters determine who governs, and therefore what policies are implemented. It seemed that the only way the Unionist side could win was to try and present some kind of perpetual SNP government and thereby try to expect the SNP have to defend their own policies. The SNP did not do well in rebooting that, and the YES movement didn’t get the necessary publicity to present the core principle of Self-Determination.

      • Westminster does not have reserved rights to the Scottish constitution.
        The Scottish government passed into scots constitutional law the “Claim of Right”:
        This legally binding Scots constitutional law still stands to this day.
        This gives the Scottish people the sole right to decide what form of government they want. Westminster has no power to give Scotland even a devolved parliament.
        Scotland and England are not in union, it is only our governments by a Treaty who are in a union The Scottish people voted yes to a Scottish Parliament in 1999 its not or should not be devolved it is a recalled full Scottish Parliament.

    • Here’s how I see the process:

      1. Provisional constitution drafted and published by Scottish Government. This would build on existing institutions, using a tried and tested ‘Lancaster House’ template.
      2. Referendum held on independence on the basis of that provisional constitution. This provides the democratic mandate.
      3. Preparations for independence take place. Negotiations with UK, EU etc.
      4. Independence day. Provisional constitution comes into effect.
      5. During first five years, there’s a participatory constitution building process to develop a ‘permanent’ constitution. This would take the form of a constituent assembly or constitutional convention. Permanent constitution drafted by that body would have to adopted by Scottish Parliament (say, by a two thirds majority) and by the people in a referendum. As a safeguard, if no permanent constitution is adopted during this time, the provisional constitution would lose its provisional status and become the permanent constitution.

      In other words, the (provisional) constitution would be drafted before independence but would only come into effect on independence day.

      • As with any other independent country, Scotland can do what it wants after independence. Until then, however, like any colony or ‘sub-nation’, all ‘decisions’ in Scotland have to be ratified by our ‘administrative Power’. If Scots want a written constitution after independence we will write one. But lets not confuse matters by someone drafting one now, or borrowing a ‘template’, whose contents and tone will inevitably not please everyone. It just adds to complexity like the SNP’s tome of a White Paper did. Keep it simple for noo – independence, aye or naw, or raither, the deil ye ken (i.e. thaim), or the deil ye ken e’en mair (oorsels).

        • The alternative is to grant a blank cheque to the first Scottish government. The question of independence for some (those who believe in it) is a matter of principle. But for others (those who might pragmatically be reconciled to it) it’s a matter of careful judgment based on assessment of risks. The provisional constitution provides some mitigation of risk, which reassures people than an independent Scotland wouldn’t be for the SNP, or for the ‘nationalist camp’, but for everyone.

          Of course, what I’m actually suggesting is a five year inclusive and participatory constitution-building period post-independence. The provisional constitution that should be proposed before independence is just a stop-gap to provide stability and reassurance until we get there.

          • “The alternative is to grant a blank cheque to the first Scottish government.”

            Not really. Post independence, people in Scotland can vote for who they want, based on what is proposed in their manifesto. Which might include things like a written constitution, or not. There is no need to rush out a draft constitution now, which would only be rubbished by Scotland’s ‘administrative Power’ and its complicit media, for months on end. A “provisional constitution” would in any case be about as certain as the Sewell Convention. People can believe in it if they wish, or not, but one thing is for such they cannot depend on it.

        • I am not sure Alf. After listening to Mr Bulmer I think I can really picture voting for an independent country with a drafted constitution since day 1.

          It think this is appealing for several reasons. One of them is that gives reassurance to the electorate that independence is not going to be this chaotic ‘abyss’ that some unionists attempted to peddle during indiref1. Also, I think it could give to those unconvinced something tangible to vote and to look forward to. Something that the UK currently does not have on offer: a constitution that will protect their rights rather than the fudged, obscure, bending phantom version that the UK currently has and that only protects the interests of the government of the day because none of the ordinary citizens without a degree in law can actually decipher it (or actually find it).

          With regards to Scotland’s “administrative power” in Westminster rubbishing our constitution down, well Alf they do it on a daily basis with everything else that has a Scottish trademark, so it is fully expected, to be honest. But it is going to come to a time with regards to Scottish matters that we will have to say to Westminster “thanks, but no thanks”. “You have vested interests in our country therefore your opinion is not longer impartial, so we will continue with our own plan thank you very much”.

          In fact, my guess is that the idea of a written constitution for Scotland, even if just in draft form, will send shivers down the spines of a few down south who will desperately attempt to suffocate the idea for two reasons:
          1. The people of Scotland may like it and that is bad for them
          2. The people of England may like it too and that may be even worse because they may demand one as well.

          The best antidote to Westminster saying ‘no’ is the people of Scotland saying ‘Yes’!! The sooner the idea of a constitution is put into the minds of the people so they start asking for one the better, in my opinion.

  6. Publishing a provisional constitution may be essential further down the line when a 2nd referendum is a more settled prospect. It would be hard to justify working on one now but when it’s essential for the SNP to soften entrenched positions and resistance from Labour and Tory voters this would be a good mechanism to achieve that. The Labour and Tory parties will always oppose and rubbish this but it’s the voters that need to be pro actively convinced. It would also assist in dismantling the idea that voting for independence means you’re SNP. All desirable outcomes.

    I see what Alf Baird is saying but just because it’s a complex idea doesn’t mean it shouldn’t be followed through. There will come a time when the SNP will actually need to do something new to enthuse people and not let things stagnate as they have been.


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