Scottish independence: Expert view on post-Yes constitutional plans
The Scottish government has set out its plans for a written constitution if people in Scotland vote for independence. Here, Prof Michael Keating, project director of the Scottish Centre on Constitutional Change, offers his analysis.
The Scottish government’s draft Independence Bill is an effort to flesh out the process of independence and give some idea of what the constitution of an independent Scotland might look like.
The most important provision is perhaps that the final constitution would be drawn up by a Constitutional Convention involving the citizens of the new state, rather than by politicians alone.
This is an idea that has been pursued recently in a number of countries, including Iceland and Ireland in an effort to open up the process and counter the pervasive suspicion of the political class.
In the meantime, there are transitional provisions, providing for continuity of existing laws, including those stemming from Westminster and the European Union.
To demonstrate that Scotland is resuming its independence, not getting it afresh, the 1707 Act of Union (the one passed by the old Scottish Parliament) is repealed and Westminster is invited to repeal its equivalent act.
There will be negotiation for the safe and expeditious removal of nuclear weapons, so entrenching the commitment to get rid of Trident.
Much of the text reflects trends in British constitutional reform thinking since the Charter 88 movement of the 1980s – but with a Scottish twist.
So, sovereignty will be vested in the people but this is presented as a distinct Scottish principle.
Again, to provide historic legitimacy, it is traced all the way to the Declaration of Arbroath and the Convention of 1689 (which deposed James VII). The monarchy, on the other hand, will be retained with its existing privileges.
Local self-government will be guaranteed in principle, as in many countries, although not its precise form.
The European Convention on Human Rights presently comes into Scotland in two forms – a strong form for devolved matters and a weaker one for reserved matters. It is proposed that the stronger form should apply across the board.
Beyond this are suggestions from the Scottish government to the proposed convention. These follow many modern constitutions in specifying social and environmental rights.
So citizens will be guaranteed housing, education and a healthy environment. Such rights have been controversial since they are difficult to define except in rather banal terms and, if they are taken seriously, can constrain the priorities of elected governments.
In a world of limited resources, any entitlement for one person or service implies less for someone else. If social rights are to be enforceable, this implies that judges will take decisions about the allocation of expenditure, a matter that is normally the task of elected governments.
It is not only independent states that have constitutions. Increasingly, they have been adopted in federal and devolved countries, where they have a tendency to become ever longer and more detailed.
In the event of a "No" vote, Scotland may well adopt its own constitution within a federalizing UK. In that case, many of these issues, about the scope of government, popular sovereignty and social rights, will be at the centre of the debate.