2002 Draft III: Judiciary, Rights and Substantive Provisions

This chapter, the third of three chapters examining the SNP’s 2002 constitutional text, addresses the judiciary, rights, and substantive provisions of the constitution. As well as examining provisions relating to the appointment and tenure of judges and the processes of judicial review, this chapter includes the draft constitution’s treatment of: nationalism and national identity, statehood, citizenship, religion-state relations, socio-economic rights, ‘fourth branch’ institutions, standards in public life, and local government. It argues that the draft constitution, as a supreme and rigid constitution enforced by judicial review, might be radical and contentious in a UK context, but would be a tried and tested model in the rest of the world, including in most other Westminster-derived polities. It also argues that the text envisages a ‘liberal-procedural’ constitution, in which the constitution acts as a relatively non-prescriptive framework for the conduct of democratic politics, allowing many unsettled issues of identity to be resolved at the sub-constitutional level.

2002 Draft II: Head of State and the Executive Branch

This, the second of three central chapters examining the SNP’s 2002 constitutional text, focuses on the roles and powers of the head of state, the government and the executive branch. It discusses the position of the monarchy in an independent Scotland, both in terms of its symbolic-ceremonial function and its constitutional powers, as well as examining the relationships between the prime minister, cabinet, and Parliament, in the proposed constitutional draft. A number of problems are identified, including inconsistencies and ambiguities surrounding the government formation process and reserve powers of the monarch in relation to government formation and the refusal of royal assent.

2002 Draft I: Parliament and the Legislative Power

This chapter is the first of three central chapters in which the SNP’s 2002 constitutional text is examined in detail. This document, although now dated, is still the most detailed statement of the SNP’s constitutional policy ever to have been formally announced by the party. In examining the constitutional draft’s provisions relating to Parliament and the legislative branch, the chapter argues that the general structure of the proposals are sound, but that they lack the institutional and procedural clarity needed in a working constitutional text.

The Emergent Scottish Constitutional Tradition

Continuing the examination of the contextual constraints that would bind Scottish constitution-makers in the event of independence, this chapter discusses the existing political and legal institutions of Scotland and their development from the beginnings of the Scottish national movement to 2016. It examines the emergence of distinctly Scottish constitutional ideas and institutions, from the legacy of the pre-Union Scottish kingdom, through the years of the ‘Union-state’ prior to devolution, to the design and operation of devolved bodies. It also examines responses by the Scottish national movement – both devolutionists and supporters of independence – to developments in British politics, especially the reaction against the winner-take-all and executive-dominated politics associated with the period from 1979 to 1997. The chapter concludes the first half of the book by summarising the basic conditions and requirements of a viable and acceptable constitution for Scotland in the event of independence.

Introduction

This chapter sets the book in its political landscape – in the aftermath of a relatively narrow defeat for the pro-independence side in Scotland’s 2014 independence referendum. It illustrates that the Scottish national movement developed some constitutional ideas that, being distinct from and yet also embedded within the British constitutional tradition, are worthy of study in their own right, chiefly through the detailed analysis of constitutional texts. These texts shed light not only on the nature of the Scottish national movement, but also on the state-of-the-art of Westminster-derived constitution-making generally, in its global and comparative aspect.

The SNP’s Constitutional Policy 2002–14: From Liberal Procedural Constitutionalism to Democratic Populism?

This chapter discusses the constitutional policy of the SNP since 2002. The SNP government’s 2013 White Paper and 2014 Draft Interim Constitution are discussed, and contrasted with the earlier 2002 text. The chapter argues that the interim constitution reflected a subtle shift in the SNP’s constitutional policy, away from a legal-procedural constitutionalism in which the constitution serves mainly institution-defining and rights-protecting functions, and towards a more populist constitutionalism in which the constitution serves nation-building and agenda-setting functions. It nevertheless argues that there a distinct Scottish constitutional tradition is emerging, which is a national derivation of the global Westminster model. The chapter concludes with some reflections on the state of constitutional thought in Scotland today, especially in light of the Brexit referendum.

The Scottish Context

Constitutions have to fit the context for which they are intended. Before examining specific constitutional proposals for the future constitution of an independent Scotland, this chapter therefore explores the contextual conditions that set the needs and basic parameters of constitutional design. Subjects covered include national identity, the party system, religious influences and sectarian divisions, ideology, and the internal territorial politics of Scotland.

The Global Development of the Westminster Model

This chapter argues that the term ‘Westminster Model’ is still a useful on in categorising politico-legal systems which, although capable of accommodating much diversity in term of institutional design, share unmistakable family resemblances. It shows that, amongst Westminster Model democracies, the UK – although the originator – is now the outlier. Charting the historical development of the Westminster Model in dominions and former colonies, it demonstrates that today Westminster-derived democracies usually have written and procedurally entrenched constitutions, bills of rights, judicial review, independent ‘fourth branch’ institutions, provision for referendums, and other innovations. To include such features in a Scottish Constitution would be in keeping with the globally developed Westminster Model, not a repudiation of it.