JIM SILLARS PAPER TO ALBA CONFERENCE

A Written Constitution for Scotland

Will be the most important document since 1320

The People not Parliament as sovereign

Jim Sillars

It is taken for granted in the independence movement that “The people of Scotland are sovereign.”  If our form of government is to be different from the one that has dominated us for over 300 years, then that statement has to be detached from rhetoric and made a legal construct.  

That can only be done when that assertion is made concrete in the first Article of a written constitution that is, itself, the fundamental law of an independent Scotland. 

There can be no ambiguity. The sovereignty of the people means the people are superior to the Parliament, the Executive and all other public and private organisations. 

A singular advantage of a written constitution which starts with “the people are sovereign,” is that it empowers any citizen or group of citizens to challenge parliamentary, government, other public or private body’s action, if any measure they take infringes the rights of the people as set out in the constitution. 

The Unites States is a classic example. The Constitution is above all parts of the government. The citizen above the government. That is what Scotland should aim at.

Signal of Alba’s serious intentions 

A written constitution has not been given prominence in the activities of the independence movement. It was hardly mentioned in the 2014 campaign, and not at all in the White Paper. At first hand it appears a dry subject, not one calculated to get the adrenalin pumping, yet it will be the most important document published in Scotland since the Declaration of Arbroath in 1320.

Any statement by Alba to its importance will be taken by journalists and columnists as the party going off into peripheral matters. 

But it will be a signal to those thinking of casting that second vote, of just how serious Alba is about achieving independence, not as an extension of the status quo under the Saltire rather than the Union flag, but as a transformation of our nation to a different, better, more just Scotland. A new Scotland. 

What  has distinguished Alba is that it is serious about independence. It has a strategy to gain independence, is working on the new economic policy on which the campaign will be anchored, and that it is thinking of what will need to be done when independence is gained. Pointing to the need for a written constitution post-independence shows the need for work to be done now, so that Scotland’s people are well prepared to assert their sovereignty in an unmistakable way. 

Not a blank sheet of paper

Action to be taken by the Parliament elected on 6^th.May

The broad movement may not have given priority to a written constitution on independence, but groups within have. Prominent among them is the Scottish Sovereign Research Group organised by Dr. Mark McNaught, whose members have produced drafts of a constitution, based on excellent researchover the past ten years, principally by Mark.  They do not claim to be definitive, and when I spoke to them last Saturday, they recognised that for a written constitution to have unchallengeable status, it must come from Scottish society fully participating in the discussion and debate on its contents, and endorsed in a national referendum.  

What I suggest as Alba’s policy, is this: among its first acts, the Scottish Parliament should refer to a Citizens’ Assembly the work of setting out the principles and framework of a written constitution, with the Scottish Sovereign Research Group appointed formally as advisors; with those principles and framework to be ready for study, development and decision in a final draft by a Constitutional Convention formed in the first three months of independence. 

This is not a simple task

The Citizens’ Assembly will not face a simple task, even aided by the work of its advisors.  If a written constitution is to endure over the generations, and not become the play thing of future politicians who will not like its restraints, it must be anchored in principles, values and wisdom – and defining those will be contentious.

There will be a difficult choice between what is policy and constitutional principles.  Take for example what would seem to be a highly desirable inclusion – that every family or individual should be adequately housed. Is that a policy or a constitutional principle?  If it is the latter, how can it be implemented, given that a Scottish government will not only have to allocate funds to housing, but many other competing social needs, and its spending priorities will need to change from time to time. 

The Citizens’ Assembly getting to grips with the contentious issues, and clearing the way to getting the fundamental principles right, will be of great value when a Constitutional Convention comes to do the final work. 

Just some issues we shall have to consider as a people

When the people are free, we must fashion the instruments with which we are to govern ourselves – a constitution setting limits to the power of the parliament in relation to the citizen’s rights;  the division of powers, the extent of those powers between the parliament and the executive, the franchise, the electoral  system, freedom of speech, religious freedom, a free media, independence of the judiciary, how judges are appointed, the relationship between government, police and people, and the principles and values that self-describe the nation we want the international community to see.

When sovereignty is won, the most important post-independent action will be the engagement of the people in framing the fundamental law, the supreme law, in the written constitution, by which this nation will govern itself.