Today the Scottish Government released its fourth paper in the ‘Building a New Scotland’ series. This paper covered the constitutional future of an independent Scotland. Following independence, Scotland would move away from the UK constitutional system by adopting a written, codified constitution, enshrining the rights of all citizens and describing the powers and limitations of the branches of government (such as parliament, government and the courts of law).
Here are five things you need to know from the announcement of today’s independence policy paper:
1. Scotland needs a written constitution
Unlike most countries the UK does not have a single document that could be called a constitution. Instead the UK has a series of laws, conventions, precedents and court judgements that form the foundation of how the institutions of the country should function. The idea of the ‘sovereignty of the Westminster parliament’ sits at the heart of this, with the power to legislate on any matter with a simple majority vote in both houses in Westminster. This means that a simple majority could change or overturn any law, no matter how central it is to society. It even means that Westminster could strip the Scottish Parliament of its powers by amending or even repealing the Scotland Act by a simple majority in both the House of Commons and the House of Lords.
With independence Scotland can create its own written constitution which reflects the values of the Scottish people. Allowing Scotland to create a modern and democratic constitution which ensures that the power of the Scottish state is derived from the people and not from ‘the Crown-in-Parliament’. The rights of the people would be laid out in this document and would not be subject to alteration or repeal by a simple majority vote.
2. What will Scotland’s constitution be after independence?
The paper proposes two constitutions for an independent Scotland: an interim constitution on ‘day one’ after becoming independent and a second, permanent constitution. An interim constitution is useful as it would provide a stable transition between Scotland as a devolved nation under Westminster and as a completely independent country. This would keep some of the institutions that Scotland has now, such as the Scottish Parliament, the monarchy and conventions on human rights.
After Scotland becomes independent, it would create a Constitutional Convention. This would consist of representatives from across Scottish civil society, and be tasked with drafting a new written constitution reflecting the values and rights that Scotland and the Scottish people should have. The Convention could propose major changes to political institutions, such as the size and structure of the Scottish Parliament, local government and economic, social and cultural rights. It could also include new provisions such as environmental rights.
While this constitution would be permanent, the paper also describes how it could be amended in the future. At the moment, Westminster can choose to bypass many ‘constitutional’ laws with a simple majority. A Scottish constitution would be much more strongly protected. This might be for example by a two-thirds majority vote in parliament or by a referendum. These protections would allow an independent Scotland’s constitution to move with the times without being vulnerable to the wishes of one government to override it, as is the case in the UK.
3. A written constitution will protect the NHS
The NHS is mentioned specifically as an institution that must be protected and maintained under Scotland’s new constitution. Under both the interim and new constitution:
‘An independent Scotland could have a constitution that provides recognition of the NHS in Scotland, giving the right to access a system of health care, available free at the point of use’.
Codifying the NHS in this way ensures for ourselves and for future generations that access to health care that is free at the point of use is a fundamental right in an independent Scotland. It also ensures that future governments cannot sell off parts of our health system to, for example, US healthcare companies. It protects us, through a written document, against the dismantling of our NHS and its replacement with an insurance and for-profit based system (as was promoted by the current Chancellor Jeremy Hunt in a book he co-authored).
4. Workers rights would be safeguarded
One of the features of an independent Scotland’s constitution outlined in the paper would be the protection of workers rights, including the right to strike. As Believe in Scotland has previously discussed, the UK Government is passing legislation which attacks workers rights, where some employees could be forced to work during strikes. After Brexit, Westminster has also ripped up some EU workers protections like holiday pay for part time workers and the right to rest breaks.
The paper mentions that the Scottish Government would support the inclusion of economic, social and cultural rights, including workers rights, into a new permanent constitution. This would include the right to join a trade union and to strike, which are included in over 90 constitutions worldwide, as well as in international human rights agreements. It also argues that this is fundamental in the transition to a wellbeing economy, where economic growth and social development are held in equal standing. Polling by Believe in Scotland has found that the introduction of a wellbeing economy has massive popular support – we believe that these proposals would be welcomed by the Scottish public.
5. Human Rights in an independent Scotland
A strong commitment to human rights would underpin the constitution of an independent Scotland. The Human Rights Act 1998 and the Equalities Act 2010 are central parts of the UK constitution and a fundamental part of the devolution settlement. However, these laws are once again subject to the whims of Parliament and can be amended or repealed at any time by the agreement of both Houses. The rights that you would consider fundamental to a democracy and most likely take for granted such as the right to life, to liberty, to a fair trial, to freedom of thought, belief, religion and expression are all set out here and are subject to repeal by the Commons and the Lords. The process is already underway, with some Tory MP’s looking to remove the UK from the European Convention on Human Rights, which is incorporated into UK law through The Human Rights Act.
A Scottish constitution’s core focus would be on the protection of human rights. The interim constitution would embed the human rights set out in the European Convention on Human Rights and other international human rights treaties as they relate to children, women, ethnic minorities, disabled people and the environment. This would also mean that Scotland’s approach to human rights would match the European Union’s, making it easier to cooperate with or potentially rejoin the EU in the future.
A written constitution would allow for Scotland to lay out the importance of its shift to an economy focused on wellbeing by including in it the social and cultural rights set out in the International Covenant on Economic, Social and Cultural Rights. The adoption of a wellbeing economic system is central not only to winning independence but to improving the lives of everyone in Scotland afterwards by shifting our focus away from growth and towards the wellbeing of society.
The outlining of a Scottish constitution is a key step in the process for Scotland to achieve independence. The paper published today demonstrates how an independent Scotland could enshrine human rights and democracy at the heart of its constitution, in contrast with the murky and overreaching ‘Westminster sovereignty’ which underpins UK constitutional law. By becoming independent, Scotland could take a more comprehensive approach to its constitution which is better suited and more appropriate for a modern democratic country.