September 14, 2014 by Paul Goldsmith
The Uk is one of the only countries in the world without a written, codified constitution. The UK’s constitution, as it stands, is spread over many documents, and, significantly, it can be altered by Parliament in any way, any time it wants. An independent Scotland will have a written constitution.
A constitution is a legal document that contains a set of rules that establishes the powers of political institutions, and the limits that may be placed on those powers – including the powers of those that govern us and the courts too. It sets out the relationship between the state and the citizen by outlining the rights that citizens may expect to enjoy. On 16th June, the Scottish Government published a draft constitution (which you can read here). It included provisions to protect the environment and observe international law in foreign policy. The SNP have explained that should there be a “yes” vote, a nationwide consultation process would take place with the aim of being able to sign the constitution by the Independence Day – which they want to take place before May 2016 (when the next Scottish elections are). They have indicated that they would push for the right to a free education to be included for instance among other provisions.
The key advantage of a constitution is that it limits the power of government – solving the problem once identified by Lord Hailsham that the UK government with a majority is an “elective dictatorship”, in that there is very little to stop them doing what they want (Iraq). Laws can’t be changed for political expediency (the Human Rights Act after 9/11). Most importantly, citizens can be taught from an early age what their fundamental rights are in the knowledge that they can’t be suddenly changed. Given democracy is made of the two words ‘Demos’ (people) and ‘kratos’ (power) – having a constitution makes it more likely that this is so.
There are arguments against having a written constitution. Constitutions hand an enormous amount of political power to the judiciary – you only have to look at the strides into the political arena made by supreme court judges in the USA to see that in practice. Political accountability suffers too; you can elect politicians but they then have their hands tied by a written constitution. Again, you only have to look at the USA to see Barack Obama’s ability to enact parts of his manifesto seriously hindered by the separation of powers enshrined in their constitution. Given the SNP’s example, what happens if there is a massive funding problem in higher education, but they have free education in their constitution – you could vote for a party that would bring in tuition fees to help with that, but the political judgement would have to be made in a court even if they have a mandate. Constitutions can be inflexible like that. Parliamentary sovereignty is a key aspect of how the UK is run, and it would be lost if there were a written constitution.
So there is no set answer on this – but the SNP are clear – an independent Scotland will have a codified constitution – it will be interesting to see how that works.