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

What could be in an interim constitution

Key points

The Scottish Government proposes that the interim constitution for Scotland would build on the strong foundations of government in Scotland. Any fundamental change should be for the Constitutional Convention to propose, for inclusion in the permanent written constitution.

The interim constitution would be agreed by the Scottish Parliament and would remain in place until a permanent constitution is endorsed in a referendum. It would establish the sovereignty of the people and set out the key institutions of Scotland as an independent democratic state. It would establish an independent Scotland as a parliamentary democracy retaining a constitutional monarchy at the point of independence, and the institutions necessary to sustain democracy, the rule of law, a functioning market economy, human rights and respect for and protection of minorities, setting Scotland on the path to EU accession.^[92]

The interim constitution would embed human rights set out in the European Convention on Human Rights and the core international human rights treaties relating to economic, social and cultural rights and the rights of children, women, minority ethnic communities, disabled people and refugees, and the right to a healthy environment. It would also embed equality safeguards and include a duty to advance equality of opportunity for all.

The interim constitution would also set out provisions securing the independence of local government and on citizenship and place a duty on post-independent Scotland to pursue nuclear disarmament.

It would also place a duty on the Scottish Parliament to establish a Constitutional Convention post-independence, to draft a permanent written constitution for Scotland.

The Scottish Government proposes that the interim constitution should build on the already strong foundations of government in Scotland, enhanced and adapted as appropriate to take advantage of the full powers and responsibilities of independence.

There may be a case for significant change to the way that Scotland is governed after independence. But the process for making decisions about that should be one that everyone in Scotland – whether they supported independence or not – should be part of. The Scottish Government, therefore, believes that any fundamental change should be for the Constitutional Convention to propose, for inclusion in the permanent written constitution, which would ultimately be judged by the people in a referendum.

But that is no reason not to be ambitious for the interim constitution. Strong constitutional protections can be put in place by building on what Scotland already has. There are also currently reserved matters, such as citizenship and defence, that an interim constitution would have to cover that the Scotland Act 1998 currently does not. On these issues and the interim constitution as a whole, the Scottish Government would seek to secure cross-party consensus.

This chapter sets out the Scottish Government's proposals for the interim constitution for Scotland.

The sovereignty of people in Scotland

That sovereignty lies with the people will be the fundamental political, constitutional and legal organising principle of an independent Scotland.

It is a principle charged with historical resonance, affirming the historic Scots constitutional tradition that Monarchs and parliaments are the servants of the people.^[93]

The interim constitution for Scotland would establish the sovereignty of the people in Scotland in line with this tradition and these principles.

It would set out that the authority of institutions like the Scottish Government, Scottish Parliament, local government and the Head of State is derived from the people and that they are, therefore, accountable to the people.

And it would set out how the people's sovereignty can be exercised: through the constitution, through democratic elections that are free and fair and referendums, through the courts, through independent regulatory bodies, and through the state signing up to treaties that bind it in international law.

Scottish statehood

The interim constitution would provide that the name of the state, under which it would participate in international organisations and sign international treaties, would be Scotland.

The interim constitution would also set out which territory constitutes Scotland: what land and seas would constitute the newly independent Scotland.

The interim constitution would describe the type of state that Scotland would be: an independent country retaining a constitutional monarchy at the point of independence, and a parliamentary democracy.

The interim constitution would also make arrangements for the establishment of important aspects and symbols of Scottish statehood, such as our national flag.

Human rights and equality

Human rights and equality would be at the heart of the interim constitution.

Under devolution, this Scottish Government has taken a 'maximalist' approach to incorporating human rights protections into devolved law, and a commitment to progressive incorporation of international rights treaties would continue in the interim constitution (and in due course to any advice it provided to the Constitutional Convention on the permanent constitution). At the point of independence, the Scottish Government would consider itself bound by the same international rights-based treaties and have, as a starting point, the same international human rights obligations as the UK has at the time of independence.

Independence would also provide an opportunity for Scotland to consider the ratification of further international human rights treaties, such as the Revised European Social Charter, which the UK signed in 1997 but has so far failed to ratify. Scotland could also consider ratifying optional protocols or removing or amending reservations to international human rights treaties to which the UK is already a State Party. While an independent Scotland would have to apply to join the Council of Europe as a new member, legal experts, such as Sionaidh Douglas-Scott,^[94] have stated that the European Convention on Human Rights would continue to apply to Scotland without an interruption.

The interim constitution would embed human rights of individuals and communities, including rights protections contained in the European Convention on Human Rights and the core international human rights treaties relating to economic, social and cultural rights and the rights of children, women, minority ethnic communities, disabled people and refugees, the fundamental value of human dignity and the right to a healthy environment.

This Scottish Government would also include constitutional recognition of the NHS and a constitutional right to access a system of health care, available free at the point of need,^[95] and constitutional protection for workers' rights, including the right to strike.

These individual and collective human rights provide a framework, in which everyone has rights based upon the human dignity inherent in everyone, as articulated in Article 1 of the Universal Declaration of Human Rights: "All human beings are born free and equal in dignity and rights."^[96] These rights would include such rights as the right to an adequate standard of living, including the rights to adequate food, clothing and housing and the continuous improvement of living conditions.

This would mean that any laws – including on subjects that used to be reserved to the Westminster Parliament – which were incompatible with these rights, could be struck down.

The interim constitution would also fully embed equality safeguards, reflecting and giving constitutional status to key features of the Equality Act 2010, and include a positive duty to advance equality of opportunity for all. Having a positive duty would mean that those institutions and individuals on whom the duty fell would be required to act to fulfil and uphold those duties. An independent Scotland would be active in promoting and upholding rights and equality, ensuring that a holistic approach is taken and reflected in the systems and processes of government.

The structure of the state

The interim constitution would set out that:

• the Head of State of an independent Scotland would continue to be His Majesty King Charles III, so long as the people of Scotland desired it. The "personal union" of the Scottish and English crowns has been in place since 1603, when both Scotland and England were independent states, and the Monarch of England, Wales and Northern Ireland after Scottish independence could continue to be Monarch in Scotland as an independent state.^[97] Scotland would join 15 other Commonwealth states^[98] that currently have the King as Head of State.^[99] The Scottish Government would support, and promote amongst the other Commonwealth States with the King as Head of State, an amendment to the rules on succession to the Crown to remove provisions on religious discrimination^[100]
• the Head of Government of an independent Scotland would continue to be the First Minister
• the legislature of an independent Scotland would continue to be the Scottish Parliament, with members of the Scottish Parliament being elected in regular, free and fair elections
• the executive in an independent Scotland would continue to be the Scottish Government, and it would continue to be accountable under the constitution to the Scottish Parliament, elected by the people in Scotland
• there would be a civil service to support government in Scotland, required to act with integrity, honesty, objectivity and impartiality in discharging its duties
• there would continue to be an independent judiciary and a robust and independent system of criminal prosecution and investigation of deaths, headed by the Lord Advocate, whose independence would be statutorily guaranteed
• the Court of Session (for civil matters) and the High Court of Justiciary (for criminal matters) would continue as the most senior courts in Scotland, and collectively would become the Supreme Court of Scotland
• oversight and regulatory public bodies, including Audit Scotland, the Scottish Public Services Ombudsman and the Children and Young People's Commissioner would continue. The Scottish Human Rights Commission would continue to be Scotland's National Human Rights Institution with additional responsibility for human rights matters previously taken forward in reserved areas by the Equality and Human Rights Commission
• new public bodies would be established where required, to take on the functions that applied across Great Britain or the United Kingdom, including Scotland, before independence. This would, for instance, include an independent Electoral Commission, a Scottish Central Bank and could include energy regulators and a Civil Service Commission for Scotland

These arrangements provide for continuity in the structures of democratic, accountable government in an independent Scotland, reflecting the fact that the existing Scottish institutions have served the country well and can be expected to develop and evolve with the full powers and responsibilities of independence. These arrangements would not change the status of any religion or of Scotland's churches.

Local government

The interim constitution would reflect the structure, powers and responsibilities of local government in place immediately prior to the point of independence, and establish that local government would operate independently of central government in an independent Scotland.

Article 2 of the European Charter of Local Self-Government requires that 'the principle of local self-government shall be recognised in domestic legislation and, where practicable, in the constitution.'^[101] The Scottish Government is committed to the Charter and supported the European Charter of Local Self Government (Incorporation) (Scotland) Bill in 2021. Although this remains a Members Bill, the Scottish Government will continue to support the Bill through reconsideration following a Supreme Court judgment that aspects of it were outwith competence. Independence would resolve the competence issue.

Continuity of law

The interim constitution would have to provide for the continuity of law in Scotland.

This would mean that all laws in force before independence in Scotland continue to be in force from independence, except where modified or repealed by the Scottish Parliament.^[102]

This would include primary sources of law such as Acts of the Westminster Parliament in both reserved and devolved areas where they formed part of the law of Scotland, Acts of the Scottish Parliament and the pre-1707 Parliament of Scotland, secondary legislation, the common law and retained EU law.

Island communities

The interim constitution would also include a provision reflecting and protecting the specific interests and needs of island communities.

Languages

The Scottish Government proposes to include provisions to recognise the languages of Scotland, including English, Scots, Gaelic and British Sign Language.

Nuclear disarmament

The Scottish Government proposes that the interim constitution should place a duty on the post-independent Scottish Government to pursue nuclear disarmament.

This should require the Scottish Government of the day to pursue negotiations with a view to securing the safe and expeditious removal from Scotland of nuclear weapons based here.

Defence

The Scottish Government proposes that there should be a provision on defence, outlining that there will be Scottish Armed Forces that will defend and protect Scotland's interests from external aggression or threat of war in accordance with international law, and participate in international humanitarian and peacekeeping missions.

The mission of the Scottish Armed Forces would be to guarantee the sovereignty of Scotland and to defend its territorial integrity, its citizens and the democratic constitutional order. The Scottish Armed Forces will seek to be a force for good and peace in the world.

Citizenship

The interim constitution would set out this Government's proposals for an inclusive and welcoming approach to the entitlement to Scottish citizenship. The interim constitution would grant Scottish citizenship to all British citizens living in Scotland at the point of independence and to all British citizens who were born in Scotland. There would also be a simple process for other British citizens with a close and enduring connection to Scotland to register as a Scottish citizen. Rules would be clearly set out to allow nationals of other countries to become Scottish citizens if they chose. More detailed policy proposals regarding citizenship will be set out in the Building a New Scotland series.

International law

The interim constitution would prescribe a democratic and transparent system for the scrutiny and ratification of international treaties.

Establishing the Scottish Constitutional Convention

The interim constitution would place a duty on the Scottish Parliament to establish a Constitutional Convention to draft the permanent constitution of Scotland. The Convention should be set up within the first parliament after independence.

Amending the interim constitution

The Scottish Government also proposes that the interim constitution should set out the arrangements for its own amendment. Given its importance, the interim constitution should be given a higher status in law than ordinary legislation of the Scottish Parliament. At present, there are certain features of the Scotland Act, relating to the essentials of Scotland's democracy, which the Scottish Parliament can amend, but only if a two-thirds majority of members of the Scottish Parliament vote for it.^[103]

The Scottish Government therefore proposes that the interim constitution should declare and provide that the same rule applies to the interim constitution itself: amendments would only be possible where a two-thirds majority of Scotland's elected parliamentarians vote for it. This would not supplant the process to be agreed and legislated for by the Scottish Parliament to create the Constitutional Convention and the processes for introducing the permanent constitution.