Our constitution, July 2012: independence and devolution

I decided in at the end of June to do a series of posts through July on my thoughts about a Scottish Constitution, using as a framework an excellent summary I was given at A state fit for the 21st Century.

I am not a lawyer. I am not employed by otherwise connected with or speaking on behalf of the Constitutional Commission. I welcome objections, caveats, better-informed comments clarifying or correcting any misunderstandings or mistakes I’ve made, references to other sources of information, and if you start blogging about this too, links to other blogposts.

As for the independence referendum – I’m undecided. As yet neither Yes Scotland nor Better Together have particularly convinced me. I don’t know how I’ll vote in autumn 2014. I’d like a campaign for a constitution to be independent of either campaign, and not tied to any party.

Aim:

“To establish the Scottish State as a stable, effective parliamentary democracy that upholds fundamental rights and serves the common-weal of the people.”


First four points are national rather than devolutionary. General:

  1. Written constitution: amendable only by super-majority in Parliament plus binding referendum – enshrining sovereignity of the people, not Parliament.
  2. Territorial integrity of Scottish state, including territorial waters and EEZ.
  3. Inclusive citizenship on basis of residence.
  4. Universal suffrage, with proportional representation for all elections.

These first four points are all outwith the Scottish parliament’s remit. Does this mean a Scottish constitution is not worth working on unless you also support independence?

I don’t think so. Norway’s Constitution Day, 17th May, has been celebrated since 1814, though Norway did not become independent till 1905.

I think we all understand that the idea of independence for Scotland is not going to simply go away if “No” wins in 2014. (One of the things that worries me about the possibility of a second devomax question being included on the ballot is that it would certainly lead to an uncertain result. If there is a single question with a Yes/No answer, then whichever answer wins, there’s a clear decision made, whichever way it goes – unlike the choice for three.) If devolution wins in 2014, it may be another generation before the independence movement can call for another referendum – but they will, and we’ll be discussing this again in the 2040s, if we live so long.

Oddly, so far at least that I’ve seen, it’s been all been people who intend to vote Yes arguing that there’s no point in having a constitution if you’re going to vote No.

Written constitution: amendable only by super-majority in Parliament plus binding referendum – enshrining sovereignity of the people, not Parliament.

The Scottish Parliament could decide to vote to accept the Scottish Constitution. For this to be legally binding in a devolved Scotland, there would have to be an amendment which allows that so long as Scotland is a part of the UK, the Scottish Constitution applies only to powers devolved to Scotland.

The Constitution, while not written to please any one party, and decidedly written to ensure that the Scottish Government can never regard itself as the supreme power in Scotland as the Westminster Government can in the UK, should be acceptable to a supermajority of MSPs. (How many MSPs took the oath in the form that pledges allegience to the sovereignity of the Scottish people? It’s not just an SNP thing.)

Would we need to have a referendum on the Constitution, as we did on the Scottish Parliament? I think we would. True, if the Constitution were complete and accepted by the independence referendum’s White Paper, due out November 2013, then the referendum on independence could be understood to be also a referendum on the constitution – but (a) that would give us less than 17 months to crowdsource and draft a constitution, and (b) I’d be the first to agree that the independence referendum should stay single-issue.

I like the idea of having Open Space meetings across Scotland – actually, physically, in every self-defined community, wherever there’s a possible venue, getting together and deciding what we want to see in a Scottish constitution. For each Open Space meeting to then return their chosen points for a constitution to the Constitutional Convention, whenever held and however composed.

The point of this survey was to try to crowdsource some ideas online as a starting point. Discussed in last Thursday’s meeting was the possibility of a travelling roadshow. But whatever’s decided on, a part of the problem will be convincing funders there’s a public, non-political interest in having a constitution, and a convention. In Scotland, particularly outside the Central Belt, doing anything like this will cost. But no Constitution for Scotland should be framed on the basis only of what people living in Edinburgh and Glasgow and the Central Belt are interested in.

Territorial integrity of Scottish state, including territorial waters and EEZ.

After reviewing studies on interstate wars, John Vasquez wrote in 1993 that “Of all the issues over which wars could logically be fought, territorial issues seem to be the ones most often associated with wars. Few interstate wars are fought without any territorial issue being involved in one way or another.”

That was quoted in “The Territorial Integrity Norm: International Boundaries and the Use of Force” by Mark W. Zacher, who went on to say: “Concurrently, something very significant has been happening in international relations that raises questions concerning judgments of the decreasing importance of boundaries: the growing respect for the proscription that force should not be used to alter interstate boundaries—what is referred to here as the territorial integrity norm.”

This is a pictorial depiction of a thousand years of European history and territorial integrity and war, lasting four and a half minutes.

This is the UK’s Exclusive Economic Zone (EEZ) – the area of the sea around the UK where the UK claims special rights over what’s on, in, or under the sea:
The UK's Exclusive Economic Zone

This is a depiction of the English / Scottish redrawn-in-1999 boundary in the UK’s EEZ:
The English / Scottish maritime boundary since 1999

This boundary was redrawn to “annex 6,000 square miles of Scottish waters to England, including the Argyll field and six other major oilfields” – Craig Murray notes

The UK’s other maritime boundaries are based on what is known formally in international law as the modified equidistance principle. The England/Scotland border was of course imposed, not negotiated. It is my cold, professional opinion that this border lies outside the range of feasible solutions that could be obtained by genuine negotiation, arbitration or judgement.

It ignores a number of acknowledged precepts in boundary resolutions, most important of which is how to deal with an inverted right angle coastline, as the Scottish coastline is from Elgin to Berwick, with the angle point around Edinburgh. It also fails adequately to close the Forth and Tay estuaries with baselines – by stark contrast to the massive baselines the UK used across the Thames and Stour.

Declaring territorial integrity in Scotland’s constitution will be one of the biggest sticking points. It would be unwise, even for those who are firm in their intention to hold by devolution within the UK, to let ourselves be scared off declaring it even though the declaration without force of law will be regarded as provocative.

If Scotland remains devolved, the maritime boundary between England and Scotland will continue to be imposed by Westminster, not negotiated according to international law. War is not going to break out between England and Scotland over the oil: to those outside the UK, what will matter is not which state owns the oil but who gets access to it and what they pay for it.

Inclusive citizenship on basis of residence.

The SNP’s assertion for many years has been that everyone “born or living in Scotland” who wants to be a Scot, can have Scottish citizenship when Scotland becomes independent. This sounds simple – but what of the student who was born in Nottingham and came to Glasgow university and worked in Scotland and fully intended to make their home here – until their employer offered them a job in San Francisco, contracted for five years over the year of Scottish independence? What of a person who was not born in Scotland, but all four grandparents and most of their close relatives live there? For years after Independence Day, there are bound to be complicated cases of people who want to be Scottish citizens and don’t pass the born in/living in rule.

One thing I think to be avoided: ever tolerating the idea of a class of the very rich who live in Scotland but are allowed to be “non-dom for tax purposes”.

None of this could apply legally in a devolved Scotland. But it would be worth it as a clear statement of who we are.

That’s what I want for Scotland. Whether we vote Yes or No in 2014 is less important to me than whether we can stand up as Scottish together and say to these white nationalists with their notion of “defending Scotland” against diversity, that we are Scotland, and we are our nation’s own defense against them.

Universal suffrage, with proportional representation for all elections

Universal suffrage of all citizens is complicated only by the question of “who is a citizen”? A citizen of another EU member state, resident in Scotland, can vote in local government elections and for the Scottish Parliament and in EU elections, but not for Westminster. (And Scots living in England complain about not getting to vote in the referendum.) Otherwise we seem to be agreed that if you’re over 18 and on the electoral register you can vote. Or over 16. Or drop it to 14. Or raise it to 25. (Not entirely seriously. But the Scottish Youth Parliament is for 14-25s only.)

I’d rather fix low turnout that drop the voting age. I don’t have any strong feelings against dropping the franchise age to 16, I just don’t see a lot of reason for it, either. You are apparently much more likely to get into the habit of voting if the first election after you became eligible happens soon after you became eligible. But in the US they’re never more than two years from a major election and they have even lower turnouts than we do. Is the age at which you can vote something that should go in a Constitution? Should there be a lower age limit under which you cannot stand for public office? I think that no one should be able to stand for election as an MP unless they’ve spent at least five years outside politics: but if a young person is committed enough to local politics to want to be a councillor, why not?

The kicker would be “proportional representation for all elections”. We wouldn’t have it for Westminister elections, and the form of PR for the Scottish Parliament is fixed by the Scotland Act. I don’t think the form of PR should be fixed by Constitution, and this is clearly one of the points that would be aspirational-but-stymied if Scotland were to remain a devolved part of the UK.

But isn’t the aspiration itself worthwhile? The “No to AV” campaign, against even the weakest form of PR, had to tell big lies to make any kind of case against reform – the initial polling for a change was favourable.

Part 2 tomorrow. Take the survey.

Read some other constitutions at the Constitutional Commission.

—————–
Index of all posts in the Scottish Constitution series
Take the survey

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Filed under Elections, Scottish Constitution, Scottish Culture, Scottish Politics

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