Meeting of the Minds on a Written Scottish Constitution


By Mark McNaught

Last weekend, March 16 in Paris at the Fondation Nationale des Sciences Politiques, I had the honour of hosting an academic conference on a written Scottish constitution.  It succeeded beyond my highest aspirations.

Pooling some of the best minds on constitutional issues from several countries, this conference used Elliot Bulmer’s draft constitution from A Model Constitution for Scotland as a reference to suggest revisions to make it an even more democratic and innovative document.

The brief introduction by Dr Mark McNaught, (University of Rennes 2 and Sciences-Po Paris) discusses the need for a written constitution, and what advantages such a document could bring about.


Dr Elliot Bulmer, (Research Director of the Constitutional Commission) focuses on how republican values can be reflected in a Scottish constitution. Bulmer established an excellent theoretical and accessible foundation by which specific constitutional elements could be linked to broader values for a democratic Scotland.


Dr Neil Davidson, (University of Strathclyde), argues passionately on behalf of labour rights under a written Scottish constitution. The constitutional right to form labour unions and collectively bargain could serve as the cornerstone of a more democratic and civically engaged labour force.


Dr Beverly Ann Gaddy, (University of Pittsburgh in Greensburg), makes an extremely convincing case on voting rights and civic obligations as a means to ensure the sovereignty of the Scottish people. As a healthy democracy depends upon full participation of its citizens, she argues for automatic voter registration from age 16 and obligatory voting. Her recommendations are consistent with the Scottish government’s emphasis upon a civically engaged and educated populace.


Dr Mark McNaught then addresses rights, equality before the law, and sectarianism. He briefly outlines what negative rights (freedom from state interference) could be included, as well as cautioning prudence on how positive rights (rights to goods: housing, education, etc.)  could be guaranteed. Finally, he examines what provisions could be included in a constitution, including non-establishment, to alleviate and perhaps extinguish sectarianism over time.


In perhaps the most gripping and compelling presentation of the conference, MEP Alyn Smith, (MEP for Scotland and Deputy SNP Spokesman for International Relations) presents his views on a Scottish constitution and the European Union (full text available here). With an unparalleled authority and knowledge of the subject, Alyn makes an unassailable legal case that Scotland will be welcomed into the European family of nations after independence.


Having observed the corrosive influence of money on politics in the US political system, Dr Mark McNaught then focuses on constitutional prevention of corruption. These clauses are intended to not only conduct elections in a way which excludes the possibility of money playing a dominant role, but also seeks to assure the integrity of parliamentary debate and sources of information used to inform the drafting of laws.


Professor Ioannis Papadopoulos (University of Macedonia and visiting Professor at the University Paris Panthéon-Sorbonne / Sciences Po, Paris) focuses on good governance and smart regulation as legitimising factors of a new European state. Delving to the philosophical underpinnings of legitimacy, he then focuses on what forms of best practices of the EU could be incorporated in a written Scottish constitution.


Professor Guillaume Tusseau, (Sciences-Po Paris Law School) then presents how to build a constitutional amendment procedure adaptable to the demands of modernity. He argues for a two-tiered amendment procedure, whereby fundamental institutions and rights would be very difficult to amend, and procedural constitutional changes could be made more easily to keep the constitution adaptable and relevant to the times.


Dr James Melton (University College London) then conducts an evaluation of the Bulmer draft constitution. Comparing his draft with a database on constitutions from all over the world, Melton (with assistance from Zachary Elkins and Tom Ginsburg) compares the content, and suggests what additions may be relevant.


Participants who could not attend but will be submitting papers include Marc Sant, who proposes how the bureaucracy can be shielded from political influence. Donald Shell will be addressing the potential need for a second legislative chamber. John MacDonald will focus on the constitutional implications of the defence posture in an independent Scotland

Despite the fact that most of the participants had never met or communicated, and had come from different countries and fields, there was a broad consensus on the potential Scotland has to enact a truly novel and democratic constitution, as well as the values upon which it should be based.  

The conference was also attended by several members of the Catalan government, who were inspired by our work and wish to coordinate further on constitutional and independence issues.

Over the next several months, we hope to be publishing a book of the academic papers from the conference, including a revised draft constitution incorporating the proposals made. It is our ultimate purpose to propose a document which could serve as the basis for a real written Scottish constitution, to be adopted upon independence.

Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.