The Big Read: It's now time to have the conversation about creating a Scottish constitution

The nation looks like it’s on an unstoppable trajectory towards eventual separation from the rest of the UK, yet our political class appears to have little or no interest in the mechanics of how we’ll actually run Scotland once it’s independent.

There’s been plenty of concerned voices raised about the lack of clarity and detail on a host of issues post-independence – from the kind of currency we’ll have and the way we’ll run our economy, to the size of the armed forces and Scotland’s relationship with the EU and Nato – but perhaps the greatest hole in the national debate around independence is what a future constitution would look like and what it would do.

We should have started this conversation a long time ago – it’s not like we haven’t been talking about independence for years, or had a previous referendum to stir us to action. Earlier this month, former Labour Prime Minister Gordon Brown said the union could be consigned to the history books in a decade. Nicola Sturgeon said on Thursday that a referendum should be held “in the earlier part” of the next Parliament – and Ian Blackford, SNP leader at Westminster, went further, saying the party must plan for a referendum next year.

If we really are so close to independence, we need to be getting the handbook ready – and the handbook required is a written constitution. Establishing a new country without a plan for a constitution is the equivalent of a non-swimmer jumping into the sea in the hope that they’ll just instinctively float rather than drown.

All around the world – from America to Iceland and Chile – long-established nations are currently debating their own constitutions, but here in Scotland, on the cusp of a journey into new nationhood, there’s deafening silence.

However, the silence may be starting to break, and some serious discussion looks like it’s about to get under way – no thanks to any politicians but rather an organisation called Constitution for Scotland (CfS), which has launched a mass public consultation exercise on what a future constitution for an independent Scotland should look like.

CfS is a fascinating outfit which operates like an open-source think tank. Quite literally, anyone and everyone in Scotland can contribute to the conversation about what should or shouldn’t be in a future constitution.

Just a quick glance at the lives of the four trustees who run CfS – a non-partisan registered charity – shows that this is an organisation about ordinary people not just doing a very necessary job which politicians seem reluctant to do, but ordinary people taking the future of Scotland into their own hands. It’s DIY democracy at its best.

The four key folk in CfS are Robert Ingram from Aberdeen, a marine engineer; John Hutchinson from Fort William, a civil engineer who helped start Scotland’s rural Parliament; Ronnie Morrison from Helensburgh, an accountant; and Lorraine Cowan from Uddingston, a college lecturer.

Over Zoom, The Herald on Sunday asked them about their political beliefs – as frankly many opponents of independence will be distrustful of the organisation from the get-go. They are aware of that and are frank about their beliefs. They all favour independence and two are in the SNP. They are at pains to say, though, that the organisation isn’t linked to any party. There is no cheerleading for the SNP. Nor do they want the organisation to be just another branch of the Yes movement. In fact, they are desperate for unionists to get involved.

They are serious, decent, intelligent, well-informed and well-intentioned people. They may support a particular political position but they are about as far removed from the stereotype of the rabid zealot – of any persuasion – as it’s possible to be.

In fact, without wishing to sound derogatory, if you were looking to find a bunch of people who represent staid “Middle Scotland”, then this is it.

Their position, they say, is that they all see the country “moving towards independence” but “there’s been a total lack of preparation from our political leaders”. Given the vacuum, they want ordinary people in Scotland to have their say about what any future constitution should look like. A constitution, they say, “belongs to the people, not to politicians”.

A people’s constitution

To give the people a voice, CfS has built a rather snazzy website using software approved by the United Nations for “citizen participation”. Basically, the website allows folk like you or I to help draft an interactive constitution. The current skeleton of a draft constitution for Scotland can be found online at the group’s site –constitutionforscotland.scot – and members of the public can sign up and then start to participate. So, you can add in amendments, make suggestions and comments – and these will then be voted on by everyone else who has also signed up to the website.

Eventually, the plan is to provide a full draft constitution which politicians could then use as a template post-independence, knowing it had the seal of approval from the thousands of Scots who had helped write it. This draft – if and when there’s a vote for independence – could then form the basis of a national discussion on what a future constitution for Scotland would look like.

I joined the website to find out how it worked. As a writer I’m interested in freedom of speech so if I feel there’s little in the online draft constitution about protecting freedom of speech, I can suggest amendments on the issue which other members of the website can then vote on. If my position is accepted it goes into the draft, or perhaps it’s tweaked and then enters the draft. The website is sophisticated enough to prevent multiple voting.

In the wake of any future majority vote for independence, some form of national convention would most likely be established to debate a new constitution. CfS hopes to provide the template for that discussion with its draft constitution. Its work could also become the kernel of any constitution put to the people in a referendum after a vote in favour of independence.

“What’s important is that we offer a genuinely democratic and inclusive way for the people of Scotland to have their say on a constitution,” the CfS trustees say.

Lorraine Cowan adds: “What none of us want is to end up in a situation where we get independence and suddenly it’s left to the politicians to decide.”

She believes that if CfS gets enough members of the Scottish public to participate in drafting a future constitution, then it “becomes very difficult for whoever is in power post-independence … to ignore the weight of numbers”.

Cowan makes the point that by ordinary people drafting a constitution it helps remove the taint of party politics – a move which may make unionists feel more comfortable when it comes to participating. Imagine the reluctance among unionists to get on board if any proposed constitution was an SNP creation?

“It’s vitally important,” Cowan says, “that we bring in people who are traditionally unionist – not in an attempt to convert them, but to make sure that they have their say as well. Irrespective of whether we’re still part of the union or we become independent, this is the country they live in too.”

The project may also help the nation address some of the most difficult questions around independence. By ordinary people – both Yes and No – chipping into a mass national discussion on a future constitution, we’ll all have to do some serious thinking about complicated issues. Who will be our head of state? What kind of second chamber will we have?

John Hutchinson adds that the independence project “isn’t owned by the SNP, it’s owned by the people”.

There’s an admirable determination to provide “vision” where vision is lacking at a political level. Most citizens, Robert Ingram says, when they think of Scotland’s political future “realise there needs to be some planning and that’s what we’re doing – planning. You don’t build a house without a set of plans, and the other problem is that currently the SNP haven’t come out in public with all their various policies … the Scots themselves are working out all those issues. The politicians, not to be unkind to them, most don’t have the time or expertise, but the work is being done and a constitution brings it all together … With all due respect to our politicians, they tend to look after themselves first”.

Debate around a draft constitution is already taking an interesting turn. Conversations are taking place about whether it’s appropriate for the constitution to include issues like a land value tax or whether that should be left to individual governments. There’s also debate about whether someone should have residency rights before they buy land in Scotland. “These are hugely controversial issues,” says Hutchinson, “but they’re about shaping the country we want to see.”

The plan now is to let the site grow until it reaches “critical mass” with enough ordinary citizens participating and debating until a sensible draft document takes shape. If the citizens of Scotland – regardless of whether they’re pro- or anti-independence – are able to put together an intelligent daft constitution, that would be historic in itself. After that, it would then be time for the politicians to get involved.

Spondoolies: the crazy tyranny of the majority

Self-evidently, in any crowdsourced constitution, there’s a risk of “the tyranny of the majority”. In the past, opinion polls have shown the British public favour the restoration of the death penalty, for example. So, could a mass participatory consultation exercise on a future constitution set us on the path to legislation many would detest or which might be inimical to minorities?

Ultimately, the CfS team say, they can’t shy away from controversial issues and they must equally be bound by the democratic process. So, expect issues like abortion to form part of the future debate. Ronnie Morrison points to a bitter but fundamental truth about democracy. Any alternative to the risk of “tyranny of the majority” is “that elites make up their minds on these subjects and that’s even worse”.

There’s also the chance that in the age of social media, absurdity is injected into the debate. Cowan jokingly references the notorious “Boaty McBoatface” episode – when an online poll to name a scientific research vessel degenerated into farce. No-one, she notes, would want a discussion about future finances ending up with a vote for the Scottish pound being called “spondoolies”.

Monitors work hard on the site to keep the debate on course. Without stating the obvious, it’s also pretty likely that the name of any future Scottish currency would be a matter for Parliament, not a constitution.

In the rough and tumble world of Scottish politics – particularly on hate-filled social media – debate can get nasty, and the CfS team say they’re prepared for any trolls who come their way. They’ve already been asked “why are you doing this … we don’t need this”. The vast majority of interactions, though, have been positive, polite and intelligent although some folk do just come to rant.

The Icelandic experience

One of the inspirations for CfS is what happened in Iceland, where a constitution was crowdsourced from the population in 2012. However, despite being a great exercise in bottom-up democracy, Iceland’s constitution was rejected by government even though it had been approved by a two-thirds majority in a national referendum. Quite clearly, after any Yes win in a future referendum in Scotland, we may see a number of referendums follow on other big issues, including what our constitution looks like.

The Iceland constitution reflected the concerns of the people, not politicians, and prioritised issues like the environment, human rights, protection of refugees, and “redistributing the fruits of Iceland’s natural resources”, as academics who studied the process remarked.

Constitutional debate around the world

RIGHT now America is a hotbed of constitutional debate. Concern about the constitution really caught fire after George W Bush lost the popular vote in 2000 but won the electoral college. The issue hotted up again in 2016 when the same happened with Donald Trump losing by nearly three million votes and two percentage points to Hillary Clinton but taking the electoral college. After the protracted agony of the 2020 race, the matter remains high on the agenda when it comes to political reform.

Some in America take an “originalist” approach to the constitution – the idea that the constitution should be interpreted based on the original vision of the founding fathers “at the time it was adopted”. That makes it pretty hard to overturn something as engrained as the electoral college.

However, even a rough understanding of American history shows that this was far from the plan when it came to the intention of those who drafted the constitution. Thomas Jefferson, one of the founding fathers, wrote that “each generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years”, allowing it to “be handed on, with periodical repairs, from generation to generation, to the end of time”.

In Chile, last month, 78 per cent of voters approved rewriting the country’s constitution. The next step will determine whether the new constitution will be drafted by a constitutional convention made up of politicians or a constituent assembly completely comprised of ordinary citizens. Most Chileans are unhappy that the present constitution was ratified during the military dictatorship of General Pinochet during the 1980s

Constitutions: a history

THE earliest constitutional prototypes date back nearly 4,500 years to ancient Mesopotamia. Perhaps the most famous is the Code of Hammurabi, a Babylonian King, dated around 1754BC. This charter is seen as a primitive constitution which set precedents on issues like the presumption of innocence and the need for evidence to be brought in court. It quite literally set in stone the concept of an eye for a eye with its 196th law which reads: “If a man destroy the eye of another man, they shall destroy his eye.”

In 621BC, ancient Athens instituted a set of laws, written by a Greek lawmaker called Draco. He replaced ancient oral laws, like those around blood feuds, with fixed penalties including execution. However, he went a little overboard when it came to the severity of justice – a person could be sold into slavery, for example, if they owed money to someone of higher status. Hence the word “draconian”.

Ancient Rome codified its laws in “The Twelve Tables”. After the so-called Dark Ages, European royals began to reinstate legal codes. Alfred the Great created The Doom Book – “doom” meaning judgment. The Constitution of Medina was an Islamic rule book drawn up on behalf of the Prophet Muhammad.

The Magna Carta signed by England’s King John in 1215 helped establish what we know today as “the rule of law”, preventing illegal imprisonment and promising swift justice through habeas corpus. As the enlightenment dawned, constitutions began to proliferate in European nations.

Today, the UK is one of the few countries which doesn’t have a written constitution – perhaps the biggest flaw in British democracy.