THE idea of a weekly column dedicated to constitutional affairs was born more than two years ago. In a conversation with the former editor of the Sunday National, Richard Walker, it was decided that Scotland needed a better understanding of constitutional issues and a clearer path through the constitutional debates, and that we could help to meet that need.
Since then, with my co-columnist Dr Elliot Bulmer, we have worked hard to address the many constitutional questions facing Scotland – and, where appropriate, the rest of the UK.
We have covered all aspects of constitutional design: monarchy or republic, the question of a second chamber, the protection of fundamental rights, religion-state relations, codification of constitutional conventions surrounding such matters as the appointment and removal of the Government and the dissolution of Parliament, constitutional rules on the democratic control of the armed forces, the constitutional status of local government, mechanisms for the future constitutional amendment, the role and recognition of the Opposition, and much more besides.
The rhetorical elements of a constitution, as a grand narrative of national vision, have not been ignored. There is, perhaps, a place for that – in a preamble or in opening clauses. However, we have emphasised the more prosaic and overlooked elements: the rules for the appointment of the Electoral Commission, the removal procedure for judges, the guarantees for the independence of the Auditor-General, the rules allowing Opposition members a fair share of parliamentary time, and so forth.
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These are the unseen, workaday mechanics of the constitution, essential to the proper functioning of a democratic polity.
More broadly, we have tried to explain the principles of constitutional democracy to a country with no experience of living under a written constitution. We have covered what a constitution is, why it matters, how it makes a difference to the operation of the political system.
We have shown, in one bitter example after another, how so much the political malaise in the UK can be attributed to the collapse of the unwritten constitutional order and the “good chaps” theory on which it was based – and shown how we could do much better.
We have continually had in mind Sir Ivor Jennings’s statement that “A constitution is but a means to an end, and that end is good government”. A good constitution is fundamental, necessary, and integral to the whole independence project. Yet a constitution is not an idol to be kissed, but a practical tool that our nation needs in order to strengthen its democracy, pursue social and economic development, and overcome the many risks and challenges confronting newly independent countries.
Many column inches have been devoted to the question of process and timing: given that a proper constitution is necessary, how should it be debated and adopted, by whom, and when?
We have warned against the dire electoral and practical consequences of leaving it all until after independence. Instead, we have argued that it is only right and proper for the people of Scotland to go into the next referendum with a detailed foreknowledge of what constitutional guarantees they will enjoy, in the form of an agreed interim constitution.
An interim constitution in place from day one of independence is necessary to reassure our No-voting fellow citizens that independence will not be the end of the world, to reassure investors and thereby to ensure the financial and economic success of Scotland, and to reassure our friends and allies that Scotland is a country they rely upon as a partner.
It does not have to be the “final, forever” constitution – just something sufficiently complete and robust to get us through a transitional period, providing a stable foundation on which a more inclusive, participatory constitution can then be built once independence is secure.
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It is heartening to see this position being accepted as the way ahead by senior figures in the Yes movement. There is now a sense of real commitment and urgency to get the constitution right. Do so, and we will not only have an unassailable electoral advantage over the Unionists, but also start independence on a firm footing.
Of course, even the best constitution does not – cannot – solve everything. We cannot expect one great “constitutional moment” to eliminate the need for on-going parliamentary politics, party politics or public debate. Indeed, the purpose of a good constitution, rightly understood, is not to squeeze out democratic politics, but to enable it: to provide the shared institutional arena where democratic politics can safely take place.
Above all, a constitution is no substitute for public ethics and civic virtue. Even with a good constitution, we will still need good people, good parliamentarians, good civil servants, good judges, good leaders in all aspects of civic, social and business life, good teachers, good citizens. We must rely not only upon the letter of a democratic constitution, but the spirit of democratic constitutionalism.
Writer and journalist, Marcus Chown, is Wednesday’s guest on the TNT show starting at 7pm on IndyLive
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