Building a New Scotland: Creating a modern constitution for an independent Scotland

How to create a modern constitution

Key points

The Scottish Government proposes that an independent Scotland should have a permanent written constitution, developed by people in Scotland. Independence would provide the opportunity to create a constitution based on the sovereignty of the people and reflect the fundamental values of Scotland as a modern, European nation.

To achieve this, the Scottish Government proposes:

• an interim constitution that would take effect on the day of independence
• a Constitutional Convention, which would draft the permanent constitution through an inclusive and participatory process involving the people of Scotland. The Constitutional Convention would take a human rights-based approach, putting people's human rights at the heart of policy and practice. It would be accompanied by a wider awareness-raising and engagement process
• a referendum to approve the permanent constitution

The Scottish Government proposes that the permanent constitution should include an amendment formula that would make it harder to change the constitution than is the case for ordinary legislation. This would reflect the foundational nature of the constitution, enable change to be achieved through consensual means and ensure governments are not able to undermine democratic institutions and processes or water down fundamental values and human rights with a simple majority in parliament, as is the case in the Westminster Parliament at present.

A process for building a constitution

Constitution-making is a central part of building a modern state, with a country's constitution being the vehicle for establishing and expressing rights, state functions and institutions and the relationship between power and accountability.^[72] Most countries around the world have codified constitutions (with New Zealand and Israel among the handful of exceptions),^[73] reflecting choices they have made about the nature, structure and values of the country in question. The UK's constitutional arrangements make it a clear outlier on the international stage.

The Scottish Government proposes a process for drafting, adopting and implementing a written constitution for an independent Scotland that would be owned and driven by the people of Scotland. The process would be inclusive, participatory and transparent, providing an opportunity for people in Scotland to engage in an open debate about the sort of country Scotland wants to be. This process would involve children and young people, recognising their importance as part of Scotland's future.

The Scottish Government proposes:

• an interim constitution, to take effect at the point of independence
• a legally-mandated Scottish Constitutional Convention, taking place after Scotland has chosen independence, to lead the creation of a permanent written constitution
• a referendum to approve the permanent written constitution

This approach would reflect the global recognition that the direct involvement of citizens is a vital ingredient in constitutional development or amendment. Recent examples include the Netherlands in 2006, Ecuador in 2008, Iceland from 2010 to 2012, Ireland from 2013 to 2014 and Chile in 2021.

Other countries, such as South Africa from 1992 to 1997, have also followed a process of having an interim constitution before a permanent constitution was drafted, adopted and brought into force. Scotland could learn from these examples. Further information about the various methods for constitution-building used across different countries is provided in Annex B.

An interim constitution

Scotland will need a working constitution on day one of independence to ensure that it can benefit from constitutional government during its crucial, formative years.

The Scottish Government in place at the time of a vote for independence will need to work with the Scottish Parliament and the people of Scotland to determine the details of the legislation that would establish an independent Scotland's interim constitution. This government will provide the people of Scotland with the information they need on the legislation for a draft constitution in advance of any vote for independence. Although explicitly temporary, an interim constitution would provide the stability and clarity needed for a new nation. It would ensure the continuity of existing democratic institutions required after independence, such as the Scottish Parliament, and underpin the new institutions required to ensure the functioning of the new state, such as a Scottish Central Bank.^[74]

The interim constitution could also put in place, transparently, some of the mechanisms required to support good government in an independent Scotland. It could give effect to some of the values and principles that would be especially important in the early days of a newly independent country.

The Scottish Government's initial proposals for the provisions of the interim constitution for Scotland are set out in the chapter 'What could be in a an interim constitution'. The biggest and most fundamental questions about changes to the structures of the state and the design of the constitution could not be settled immediately, however. These would be part of the fuller process of the Scottish Constitutional Convention, involving the people of Scotland in the preparation of an independent Scotland's permanent written constitution.

People in Scotland must be involved in the design of the interim constitution. The Scottish Government is committed to significant consultation and public and stakeholder engagement on a draft interim constitution for Scotland, following a vote for independence. There would be a range of opportunities, activities and platforms designed to be as inclusive and participative as possible.

The Scottish Government believes that this consultation and engagement must be designed to reach out to all of Scotland, regardless of whether or not they voted for independence. Targeted work to understand the perspective of those that did not vote for independence will be essential in securing a constitution that truly reflects the values of all of Scotland.

Legislation will be required to underpin the interim constitution.

It would come into effect upon independence and would remain so until the permanent constitution has been approved, enacted and implemented.

A Scottish Constitutional Convention

A Scottish Constitutional Convention would be set up to lead people in Scotland in a shared national endeavour to create the permanent written constitution for Scotland.

A constitutional convention is a body that brings people together to draw up a constitution or make changes to existing constitutional arrangements. It is a means of broadening and diversifying democratic involvement on key issues.^[75]

This process would ensure that the permanent constitution derives from and reflects the sovereignty of people in Scotland. Its task would be to produce a constitution for a modern European nation written by and for people in Scotland.

The Constitutional Convention would be an independent body, established by the Scottish Parliament through legislation and representative of Scotland. Legislation would determine how its membership would be selected, how it would be funded, a timeline for its work and a process for it to report.

The Constitutional Convention should adopt a human rights-based approach to its ways of working and to the constitution itself, as set out in Box 1 below. This would inform the constitution itself and the process of developing it.

Box 1: A human rights-based approach

A human rights-based approach ensures that the human rights of people are at the heart of policies and practices.^[76] The Scottish Human Rights Commission has developed the following PANEL Principles to inform a human rights-based approach:

• Participation: this means ensuring that people have the right to participate in the decisions-making processes that affect them. Participation must be accessible, free, active and meaningful
• Accountability: human rights must be effectively monitored and appropriate policies, laws, procedures and mechanism must be in place. People must be able to hold decision-makers to account and be able to seek redress
• Non-discrimination and equality: all forms of discrimination must be prevented, eliminated and prohibited. Those who face the largest barriers to having their rights realised should be prioritised
• Empowerment: this means that people understand their rights and are supported to participate in the development and decision-making processes linked to the policies and practices that affect them. Where necessary, people must be able to claim their human rights
• Legality: human rights must be recognised as entitlements that are legally enforceable. They must be protected, respected and fulfilled^[77]

The people of Scotland would be central to the decision-making process, with a range of opportunities to get involved and influence the development of the constitution. This approach would recognise the importance of the constitution as the foundation document for an independent Scotland. Particular care would be taken to ensure its development was inclusive, non-discriminatory and provided equal opportunities for people to influence it.^[78]

The Scottish Government proposes that the Constitutional Convention be appointed through a process like that for a citizens' assembly, building on the recent assemblies that have taken place in Scotland^[79] and the work underway to include deliberative democracy as part of Scotland's democratic infrastructure. Scotland's Climate Assembly, for instance, ran a parallel process with the Children's Parliament to ensure the views, opinions and ideas of children were fully integrated into the Assembly. Scotland's Climate Assembly was the first national Assembly to include children in this way. The members could be recruited by random selection to be broadly representative of the people living in Scotland, while ensuring that people with, or who share protected characteristics, and the different regions of Scotland are appropriately represented.

A Secretariat would provide the Convention with independent, logistical support, alongside expert evidence, design and facilitation teams, with oversight and scrutiny from a Stewarding Group and the Scottish Parliament.

The Constitutional Convention members would be supported with advice from constitutional law experts and other experts as required. The Constitutional Convention may, for example, wish to learn from the work of the Council of Europe's Venice Commission^[80] and UN experts, who can provide assistance in constitutional development and adoption processes.^[81] This would help to ensure that the drafting of the permanent constitution is informed by international best practice and expertise, as well as the wealth of experience and expertise already present in Scotland and indeed, the UK. The work of the convention could also draw on previous thinking on constitutional design, which has included the preparation of draft constitutions and proposals for features of constitutions of an independent Scotland.^[82]

The Constitutional Convention would engage with and take evidence from a wide range of interests in Scotland, including: civil society organisations; people with, or who share, protected characteristics; children and young people; churches and faith groups; trade unions; local authorities; politicians; and business interests.

Involving the people and communities of Scotland in varied and accessible ways would be key to creating a constitution by and for the people. The work of the Constitutional Convention would be supported by a wider awareness-raising engagement and consultation programme, securing maximum participation from people in Scotland.

People in Scotland will be able to make full use of their rights and protections in the constitution only if they know what those rights and protections are, what they mean and how to seek effective remedy when their rights are breached.^[83] This is a fundamental part of taking a human rights-based approach to the constitution.

It is particularly important that children and young people grow up knowing that they live in a country with a modern, written constitution with clear, core values and principles, and what that means for their rights as individuals, as well as understanding how their country is governed. The legislation setting up the Constitutional Convention should, therefore, also provide for awareness-raising activity and education as part of the process of adopting and embedding the constitution. This activity would build on the work undertaken as part of the Constitutional Convention process and take the same inclusive approach.^[84]

More detailed information on proposals for the Scottish Constitutional Convention, including proposals for membership, and for accessibility and inclusion measures, are set out in Annex B.

A referendum to approve the constitution

The legislation establishing the Constitutional Convention, considered, debated and passed by the Scottish Parliament, would also outline how the permanent Constitution of an independent Scotland, devised by the Constitutional Convention and presented to the Scottish Parliament, would be formally adopted by the people of Scotland.

The Scottish Government proposes that the permanent written constitution should be confirmed in a vote by the people of Scotland. For the constitution to embody and reflect the sovereignty of the people, it should only come into force if endorsed through a formal process by them, such as a referendum. This is in keeping with standard constitutional practice around the world.^[85] Estonia's constitution, for example, was approved in a referendum in 1992.^[86]

If people in Scotland vote to adopt the permanent written constitution, then it would come into force. If people vote against adopting it, the interim constitution would continue in force until the people, through their elected Scottish Parliament, decide how to proceed.

A permanent written constitution for Scotland

The permanent written constitution of an independent Scotland would come into force if people in Scotland vote for it to do so.

But that would not be the end of the story of constitutional change in an independent Scotland.

A constitution makes real, in politics and in law, the belief that there are values and institutions deserving of greater protection than ordinary law. These values and institutions should not be vulnerable to change at the whim of the government of the day or of a simple majority in parliament.

But being able to amend a constitution is also an important guarantee of a constitution's ability to move with the times and reflect modern life. A constitution needs to be a living document too.

Striking the right balance between permanence and change, and achieving that democratically, would be a key issue that the Convention would need to consider.

Most modern European constitutions have provisions that make them more difficult to amend than ordinary legislation. Provisions on amendments tend to focus on one or a combination of the following factors: a requirement for a qualified majority, a need for multiple votes or decisions, the use of referendums, and instruction of time delays.^[87]

For Sweden's constitution to be amended, for example, the Swedish Parliament must vote for the amendment twice with a general election in between the two votes.^[88] Alternatively, the first vote can be followed by a referendum.^[89] If the majority of voters vote against the amendment, the Swedish Parliament cannot proceed with it.^[90]

Making a constitution harder but not impossible to amend reflects its fundamental nature. The Venice Commission considers this "an important principle of democratic constitutionalism, fostering political stability, legitimacy, efficiency and quality of decision-making and the protection of non-majority rights and interests".^[91]

The Scottish Government, therefore, considers that an amendment formula should be included in Scotland's permanent constitution.

Individual governments would then not be able to use their simple majority in parliament to undermine key institutions or water down fundamental human rights – as is happening now in the UK Parliament and described in the chapter 'The need for a written constitution'. Any fundamental constitutional change would be subject to due process, scrutiny and transparency, set out clearly in the written constitution created by people in Scotland.