A Constitution for an Independent Scotland: A Populist’s Dream or a Misuse of Public Funds?

While the idea of a written constitution for an independent Scotland may seem appealing, the Scottish National Party’s (SNP) proposal is fraught with potential pitfalls, oversimplifications, and a lack of detail that raises serious questions about its feasibility and the use of public funds for what is a political propaganda exercise.

What have they proposed? 

AT FIRST GLANCE, the SNP’s proposed Constitution for an independent Scotland, as outlined in their ‘Building a New Scotland’ series, appears to be a bold vision of a modern, democratic state with more protection for rights and equality. The proposal outlines a shift from Westminster sovereignty to the sovereignty of the people who live in Scotland, with a written constitution that protects the right to strike and constitutional recognition of the NHS in Scotland.

The SNP proposes an interim constitution, which would take effect on the day of independence, and a permanent constitution created by the people through a legally-mandated Constitutional Convention. The interim Constitution would describe Scotland as a constitutional monarchy and a parliamentary democracy, establish the sovereignty of the people, set out the critical institutions of the state, and provide constitutional recognition of the NHS in Scotland. It would also place a duty on the post-independence Scottish Government to pursue nuclear disarmament.

While the SNP’s vision is certainly ambitious, it is not without its flaws and potential difficulties. 

Creating new institutions, processes, and regulatory bodies and implementing new laws and rights would involve significant costs. These could include the costs of setting up and running the Constitutional Convention, conducting the referendum, establishing and operating new institutions, and implementing new laws and rights. 

Without specific details, it is difficult to estimate these costs accurately, but they would be several projects required quickly and simultaneously that would be both far more costly, critical and complex than delivering two ferries – and we saw how that turned out. 

Similarly, the timescales for these processes could vary widely depending on a range of factors, including the complexity of the issues to be addressed, the level of consensus among stakeholders, and the capacity of the existing institutions to manage the transition.

The costs and timescales could be influenced by external factors, such as the negotiations with the UK government on the terms of independence, the response of international partners, and the broader economic and political context.

In general, the transition to independence and the establishment of a new constitutional framework would be a complex and potentially lengthy process, requiring careful planning, broad consultation, and significant resources.

Critique of the Proposed Constitution

The Sovereignty of the People

 While the idea of replacing Westminster sovereignty with the sovereignty of the people who live in Scotland is powerful, it could be challenging to define and implement in practice. The concept of “the people” is complex and can be interpreted in many ways =- sometimes misinterpreted deliberately by populists. It could be difficult to ensure that all voices are heard and represented equally, especially those of marginalized or minority groups. Are the people a bare majority? A pluralist belief? 

Written Constitution

 A written constitution can provide clarity and stability but can also be rigid and difficult to amend. The document mentions that the permanent Constitution should be a living document capable of evolving over time. However, the process for amending the Constitution is not clearly defined. This could lead to difficulties in adapting the Constitution to changing circumstances in the future.

Human Rights and Equality

The proposed Constitution aims to put rights and equality at its heart. However, the enforcement of these rights and equality provisions could be challenging. It would require robust institutions and legal frameworks to ensure these rights are not just theoretical but are effectively implemented and protected.

Creation Process

The creation process involving an interim constitution, a Constitutional Convention, and a referendum is ambitious and could be complex and time-consuming. It could also be subject to political influences and disagreements that could delay or disrupt the process.

Institutions and Processes

 While the interim Constitution would establish key institutions and processes, the document does not provide detailed information on how these institutions would function and interact with each other. The balance of power between these institutions and checks and balances to prevent abuse of power are not clearly defined.

Rights Coverage

The document states that the rights embedded in the interim Constitution would cover both devolved and reserved issues. However, it does not provide details on how conflicts between different rights would be resolved. For example, how would the right to strike be balanced against the right to access healthcare services?

Nuclear Disarmament

The commitment to nuclear disarmament in the interim Constitution could potentially lead to conflicts with international allies, particularly those who are nuclear powers or members of NATO. Being a member of NATO means allowing all NATO nuclear-armed boats – including British submarines, full and free access to all Scottish ports and waters.

International Treaties

 The document states that the Scottish Government would consider itself bound by the same international treaties as the UK at the time of independence. However, it does not address the process of renegotiating these treaties or establishing new ones as an independent nation. These treaties are with the UK, and it takes both parties to agree for them to hold any weight. 

Economic and Financial Provisions

 The document does not address economic and financial provisions, which are a crucial part of any constitution. It does not discuss how public funds would be raised and allocated or how economic stability would be maintained.

Judicial Review and Constitutional Court

 The document does not mention the establishment of a Constitutional Court or a similar body to interpret the Constitution and conduct judicial reviews. This is a fatal oversight and would lead to ambiguities and conflicts in the interpretation and application of the Constitution.

An Ultra Vires Effort 

While the idea of a written constitution for an independent Scotland is not inherently problematic, the timing and use of public funds for this exercise raise serious questions. With no immediate prospect of Scottish independence, without even majority support for the idea, the SNP’s focus on drafting a constitution seems more like a political exercise than a practical necessity. 

The costs of developing these proposals, including consultation and research, are substantial, with the SNP spending £1.5 million a year on developing these ‘papers’. 

They aren’t even getting our money’s worth – this lacks the necessary detail to be considered a feasible plan. The misuse of public funds for this exercise, especially when there is no prospect of Scottish independence, is an unforgivable misuse of resources that would be better spent on delivering public services. 

Every Penny, Every Hour, and Every Effort of government resources Humza Yousaf spends on these fantasy papers is stolen from Scottish Education, From Scottish Justice, Scottish Transport and Scottish Healthcare, and it shows. The SNP as a party are free to indulge in fantasy politics but should fund these exercises from party funds rather than the public purse.