A new Scottish constitution?


by Hazel Lewry

Not now – not ever.  Strong words from a person believing so strongly in freedom, democracy and individual rights.  This is an issue I feel most strongly about.  All of us should.

I do not state that we do not need, or should not have a constitution.

Every nation must have its own constitution else there is excuse for anarchy to reign supreme – a part of the problem in Westminster and its ongoing scandals is its lack of recognition that any such exists in a binding format, in fact any format other than at the whim of the incumbent party leadership.

“The whim of the incumbent party leadership” is a strong statement to make about a Parliament that prides itself on its traditions and histories, yet during the last administration we had David Cameron accusing Tony Blair of “tearing up 14 centuries of the British constitution” – actually DC continually appears to struggle with facts as he was obviously referring to “English” constitutional principles, and those really only stretch back to about the Magna Carta in a clearly identifiable form.

It seemed appropriate to look into a “new” Scottish constitution after so many have continually urged this inspection, or indeed formulation over the years, here and in many other places.  The party of our government has also forayed into the constitutional area, and then made a quite unannounced tactical withdrawal by simply by letting the subject languish.

The first item I have issue with is the word new.  One cannot have a new constitution unless one abandons the old.  It can be amended, upgraded, modified or many other words, but it cannot be new.  Therefore I object, most strongly, to the proposal for a “new” Scottish constitution.

What is a constitution though, that is the first thing.  Most sources define it as the guiding set of laws or principles under which a nation exists, these may be either written (codified) as in the USA or by accepted precedent and tradition (England).  Constitutional law nominally takes a far greater degree of legislation to implement or change than normal law.

For example, if government wished to change the level of fines for speeding offences, a simple vote securing 50%+ of the legislature may normally be all that is required, however if it wished to amend the voting age (in this hypothetical case a constitutional change) it may require to obtain 70% of the votes of the legislature, or secure the passing of a referendum at 60%. This is known as “passing a constitutional hurdle”.

Scotland already has a constitution – it is codified, it was codified in 1320.  It is called the declaration of Arbroath.  Who drafted it, whatever the reasoning was, the recipient, all are irrelevant excluding the fact that it was signed by the “community and realm of Scotland” and used in international relations, thereafter recognized as a valid diplomatic document originating from the Scots.

The Declaration of Arbroath set out, most clearly, the rights of the individual and of the monarch.  By any measure of international law that declaration was a constitutional document.

There is then a basis to build upon.  There have been other constitutional documents originating in Scotland since 1320, primarily these focused on sovereignty of the people and the rights of the individual.

I am opposed to a “new” constitution as I believe the work done by our forebears was not useless, vain, or does not apply to our present time.  The universal belief of freedom does not age.

I am in favour of a review, after independence, of our constitutional past, with a view to updating it.

I am in favour of a pledge by our present government, even up to passing an act, that this will take place involving the entire people of Scotland, and be put to a vote within perhaps a decade of Independence.  An act passed whereby its repeal would take the agreement of perhaps 70% of all MSPs.

I am in favour of a constitution that is brief, that is clear and that is precise, that can [and should] be able to be recited by any ten year old.

I am not in favour of documents such as that proposed by the SDA or others, documents which make it constitutionally acceptable to do things like declare martial law.  I don’t care if it’s in the fine print.  If people break the law there is a punishment decreed for each crime.  Martial law does not speak to me of free democracy; it speaks to me of dictatorship, anarchy and repression.

To me, a constitution should have no fine print – the US manage well with basically a one page document containing only seven articles and some twenty seven later amendments (like emancipation for slaves and women).  They do go much deeper in fine print, but these issues can be addressed later in our own nation.  If we are not free to do so it is moot.

I am not in favour of constitutional hurdles before we have a free nation – we ended up in a Union of dubious legality through a simple vote, that is how we should leave it – if we so choose.  The Westminster parliament of the 1970s caused that referendum to fail through instigation and invention of a constitutional hurdle.  Now some are asking that we open the path towards doing it to ourselves when Westminster no longer has the authority to inflict such upon us.

As Westminster has shown, the system they employ is worthless, a constitutional hurdle for the Scots was a historical first in Westminster, yet there was no constitutional hurdle for AV.  At Westminster constitutional hurdles are a matter of convenience and expedience.  Ditto for the crown that approves them.

To put the constitutional argument on the table in the realm of current events, a hostile media, and a Union fighting for its very survival with every iota of its entrenched and privileged power base would be foolhardy indeed.

There is nothing that stops, or should stop private personal discussion regarding a constitution, but that is where it must stop at this time.

I personally would not vote for an Independent Scotland if I did not like the constitution I would inherently be voting for – so the vote would be split.  I would categorically vote for an independent Scotland where I knew my people, without outside interference, would decide their own fate.  I will accept their decision.

It would not only be foolhardy, it would be utmost stupidity to put a constitutional update forward at a time when we do not yet control the entirety of our own destiny.  It would be no different to the USA re-opening its constitution for review/upgrade and inviting Canada and Mexico to participate, and agreeing to be bound by their input.  Canada and Mexico are after all part of the same land mass.

The time will come, and it appears near, when our constitution should, and I agree must be revisited. It must be expanded, updated, and brought into our present time period.

That time is not now.  Until the prize is won, the winnings cannot be shared.