By Mark McNaught
The Scottish government will set out an interim written constitution at the end of the current parliamentary session at the end of June, with plans for a constitutional convention to be held after full independence in March 2016 to finalise the constitution for generations to come.
For those of us who have been advocating a written constitution, this is extremely gratifying, and is as it should be.
Scots must be absolutely clear about what a ‘yes’ vote will mean, how an independent Scotland will operate politically and institutionally, and what fundamental rights and liberties will be respected. After a ‘yes’ vote and during independence negotiations, there must be solid constitutional planks upon which to construct the new Scottish state.
At the same time, there must be a consultative constitutional convention after independence chaired by a competent non-partisan commission to refine it, go through it line by line, and assure that everyone’s views are taken into account, to be ratified through a popular referendum. Party politics and corporate lobbying must be absent from the process, if a durable and fair constitution is to emerge.
Irrespective of the ultimate draft to be ratified, to avoid decades of constitutional muddle it is incumbent upon the Scottish government to unambiguously enshrine a secular republic in the interim constitution.
There has been considerable debate aroused over a proposal by religious groups to acknowledge the role of religion in a written constitution, much as the Vatican wanted language in the EU constitution affirming a common religious heritage.
What could such wording state, without getting snared in the bear trap of sectarian conflict? Would Protestants insist that theirs’ be the state religion, giving Catholics ample reason to fear that their religion will be permanently constitutionally disfavoured, as it is now due to the Monarch’s coronation oath? Would Catholics insist on historical acknowledgement of the historical brutality they endured? What would other religions want?
While religion has played a great and important role in Scottish history, and will continue to do so, a written constitution is not the place to treat it; churches and Scottish history lessons are.
A Scottish constitution should build a solid wall of separation between church and state. This would not only reassure many who fear that independence will lead to continued or even increased state-sanctioned religious discrimination, but also keep the Scottish state out of the religion business altogether. Our model constitution includes the proposed wording.
“The Scottish state is secular, and shall not establish, favour, nor disfavour any religion, and shall work towards the appeasement of religious and sectarian conflict in all forms. All religious and religiously owned institutions shall be subject to civil law, regulation, and taxation, with limited exceptions granted for acts and rituals which are demonstrably central and sincere to individual religious practice.”
At the same time, all Scots must have “The freedom of thought, of conscience, and of religious practice; including to not believe or participate in any religion”.
While we don’t know what the text of the interim constitution will include, Alex Salmond has hinted that Scotland could keep the Queen head of state, and others have proposed a referendum after Elizabeth passes from the throne. However, it will avoid decades of wallowing in a constitutional mire if a constitution directly upgrades to democratically elected President as head of state after independence.
Imagine if there is some muddle in the interim constitution which allows the Monarchy to continue as head of state. This is irreconcilable with popular sovereignty; the Monarch and the people cannot both be sovereign.
A modern Scotland must categorically abandon divine right, however improbably it is still maintained. And what would the exact constitutional functions of the Monarch as head of state in Scotland be? In the UK unwritten constitution, the perception that Elizabeth does not meddle in politics has been key to her continued acceptance.
Once Elizabeth passes, do Scots really want to even countenance having Charles be ‘King’ of Scotland? He’s not even King yet, yet he apparently holds a secret veto over bills which affect his Duchy of Cornwall and other vast unearned holdings.
The most disturbing part is we don’t even know the extent of his secret constitutional powers, because his office refuses to release the ‘black spider memos’.
Attorney General Dominic Grieve has justified withholding the letters to various ministers and civil servants on the grounds that they contain his “most deeply held and personal beliefs”, and that “Any such perception of political interference would be seriously damaging to his role as future monarch because if he forfeits his position of political neutrality as heir to the throne he cannot easily recover it when he is king,”
Scots can avoid a crisis of legitimacy of their Head of State by simply creating the office of an elected Scottish President with specified powers. For example;
Article III – The Presidency
Section 1: The President of Scotland shall be elected by universal popular vote, and shall exercise the following functions:
i. Representing the liberty, independence and integrity of the Scottish nation, presiding over public ceremonies, and addressing the people on civic occasions and at times of crisis or emergency.
ii. Dissolving Parliament on the advice of the Presiding Officer.
iii. Withholding assent to legislation in the case of legitimate demonstrable questions over its constitutionality.
iv. Appointing members of the judiciary.
v. Granting pardons on the advice of the Minister of Justice
vi. Appointing members of independent commissions as prescribed by law
vii. Awarding civic honours in recognition of public service.
For Scots who feel affection for Elizabeth, particularly among the older generation, she will always be their queen. Independence cannot change that. The question is not whether or not she is popular or has conducted herself admirably, but whether the Monarchy is the institution best suited to be the Scottish head of state centuries in the future. Scotland’s legitimacy must be based on popular sovereignty and meritocracy, not divine right. The constitution must reflect that to remain credible and legitimate.
This also renders legal recognition of aristocratic and noble titles by the Scottish state unconstitutional. To do otherwise would be to enshrine inequality.
Scottish ‘Lords’ will be free to call themselves whatever they want, and I’m sure the House of ‘Lords’ will figure out what to do with them, but in Scotland they shall be treated equally under the law and will have to earn respect and their way in life for a change.
No aristocratic or noble titles shall be granted or recognized by the Scottish state for any purposes. No law which perpetuates social castes, including primogeniture law, shall be recognized, promulgated, or applied.
Only independence will afford the opportunity to fundamentally recast the legitimacy of the Scottish state; from divine right, Protestantism and feudal blood-lines, directly to popular sovereignty and a democratically elected and accountable Parliament and Head of State.
Scots will no longer be subjects, they will be citizens. What more reason does anyone need to vote ‘yes’?