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

What could be in a permanent constitution

Key points

It would be for the people in Scotland, through a Constitutional Convention, their elected Scottish Parliament and a referendum on its adoption, to determine the nature of the permanent constitution, ensuring that Scotland takes an informed, open and innovative approach to its constitutional future.

While recognising the role of the Convention and the people of Scotland, the Scottish Government suggests that, as well as setting out the core institutions and practices of democratic statehood that will demonstrate that Scotland is fully committed to the values shared by other European nations and enable Scotland take its place on the international stage, a permanent constitution for Scotland could include provisions on:

• the Head of State
• a new type of Scottish Parliament, including considering the creation of a second chamber
• a clear commitment to nuclear disarmament
• independent regulatory and oversight institutions
• a wide range of rights and equality measures

As noted above in the chapter 'What would be in an interim constitution', it would be for the Constitutional Convention to develop and draft the permanent constitution of Scotland. This chapter sets out some proposals and ideas from the Scottish Government for key provisions that could be included in a constitution for Scotland.

Fundamental values

The Scottish Government would support the permanent constitution setting out and protecting fundamental values, such as the sovereignty of the people of Scotland, human dignity, equality, the rule of law, freedom, democracy and justice.

These fundamental values should inform and influence all other provisions of the constitution, be enforceable under the constitution, and play a central role in determining the meaning and implementation of the constitution.

Amending the constitution

The Scottish Government believes that, like the interim constitution, the permanent constitution should provide stability and guarantee fundamental rights and equality, while also being a living document that is able to evolve and remain relevant for future generations. Making a constitution more difficult to amend reflects the fundamental nature of it. The Constitutional Convention may, for example, consider whether amendments should have to be approved by the people in Scotland through referendums.

The Head of State

It is the Scottish Government's policy that independence in itself would not result in a change to the Head of State, and that initially an independent Scotland would remain a constitutional monarchy. This would be the case for as long as the people of Scotland wish to retain the monarchy. The Scottish Government believes that the Constitutional Convention is the appropriate place to consider other models for the Head of State of an independent country.^[104]

State institutions

The Scottish Government proposes that the constitution should include provisions setting out the remit, powers and obligations of key state institutions, including the Scottish Parliament, the Scottish Government and the Scottish civil service.

The constitution should also ensure the independence of the judiciary and the role of the Lord Advocate.

The Scottish Government believes that the constitution should set out how these institutions relate to each other. It would be important for the people of Scotland to know who is responsible for what and how they can hold state institutions to account, if necessary.

Like the constitutions of most other democratic states,^[105] the constitution of Scotland should ensure a separation and balance of power between different state institutions, including the three branches of government – the legislature (i.e. Parliament), the executive (i.e. the Government) and an independent judiciary. This separation of powers is a democratic standard,^[106] ensuring that no single branch of government has absolute power. The Scottish Government believes that the permanent constitution should set out independent regulatory and oversight institutions, building on the institutions Scotland already has, such as the Scottish Human Rights Commission, the Standards Commission and the Ethical Standards Commissioner, to ensure that the three branches of government can be held to account.

Constitutional provisions should include how members of the Scottish Parliament are elected, ensuring that the voting system is not something that could be adjusted simply for the advantage of the government of the day.

The Scottish Government proposes continuing the use of proportional representation and the current electoral franchise (or right to vote).

Importantly, independence would mean that everyone settled in Scotland would have the right to vote in all elections in Scotland, as the narrower franchise used in UK general elections would no longer be relevant.^[107]

The development of a permanent written constitution would be an opportunity to consider whether the size and composition of the Scottish Parliament needed to change to reflect the additional responsibilities of independence.

The Constitutional Convention may, for example, want to consider whether Scotland should have a 'bicameral' parliament, that is one made up of two chambers rather than one, as at present. The Convention may also wish to look at whether the role of committees should be amended and whether the number of members of the Scottish Parliament should be increased to reflect the increased responsibilities of the parliament of an independent country.

Independence would give the people in Scotland the opportunity to consider innovative ways of doing democracy, such as looking at approaches to implementing deliberative democracy alongside representative democracy.

Local government

The Scottish Government believes that a constitution should enshrine the independence of local government, recognising the status, rights and obligations of elected local government. Constitutions of many European democracies, including Ireland^[108] and Denmark,^[109] contain such provisions.

The Scottish Government would also support the permanent constitution enshrining the principles of the European Charter to protect the functions and independence of local government.

Constitutional Court

Many, but not all, constitutions set up a specialised Constitutional Court. Constitutional courts act as the custodian of the constitution on behalf of the people. The composition and exact function of this court can vary.^[110] While Denmark has no specialised Constitutional Court, Germany's constitution, also referred to as its Basic Law, established the Federal Constitutional Court. Unlike supreme courts elsewhere, Germany's Federal Constitutional Court is not part of the judicial or appeals process, except for cases linked to constitutional or international law.

The Scottish Government considers it important that there should be an effective system for the enforcement of the constitution and the rights that arise under it.

The development of a permanent written constitution would be an opportunity for the Convention to consider the potential role of Scotland's supreme courts, including whether it would be desirable to create a Constitutional Court for these matters.^[111]

Island communities

The Scottish Government would support the constitutional protection of the specific interests and needs of island communities. This could take the place of a duty on the Scottish Government to take the needs and unique geographical character of island communities into consideration when it conducts its functions.

It would be vital that island communities have a direct influence over the nature and content of such a provision.

International law

Constitutions often require the consent of the state's parliament when key international agreements are ratified.^[112]

The Scottish Government proposes that a similar requirement should be included in Scotland's permanent constitution, meaning that the scrutiny and ratification of treaties would be a transparent and democratic process.

Defence

Provisions on defence, including controls on the use of military power, are part of most constitutions in Europe and around the world.^[113] This includes NATO members, such as Denmark^[114] and the Netherlands.^[115]

The Scottish Government would support the introduction of a constitutional safeguard in the permanent constitution with respect to the deployment of armed forces to ensure that military deployments are made in a transparent and legitimate way, and to ensure that the armed forces' functions of protecting Scotland's interests, and participating in international humanitarian and peace-keeping efforts, are subject to accountability.

Nuclear disarmament

The Scottish Government is committed to supporting and promoting nuclear disarmament.

Independence would allow Scotland to achieve this aim and unite with allies in working towards the longer-term ambitions of nuclear disarmament, arms control and non-proliferation, which all play an important role in preserving peace.

The Scottish Government would also support Scotland's permanent written constitution containing a constitutional prohibition on nuclear weapons being based in Scotland.

Citizenship

Most current constitutions around the world contain some form of provision on citizenship.^[116] The Constitutional Convention may wish to consider the inclusion of a provision on Scottish citizenship, including the rights and responsibilities of Scottish citizens, in a permanent constitution.

Languages

The Scottish Government proposes no changes to the status of the languages of Scotland, including English, Scots, Gaelic and British Sign Language.

The Constitutional Convention may, however, wish to reflect on whether these languages should be afforded specific constitutional protections. The Scottish Government would also suggest that the Convention consider the constitutional status of Gaelic and the Scots language, including its various dialects.

Human rights and equality

Many constitutions around the world set out key human rights and equality protections in their core elements and detail the obligations of state institutions in guaranteeing these rights.^[117] The UN recommends that human rights protections, including children's status as human rights bearers, people's right to dignity and individual autonomy and protections that respect human diversity, and principles of non-discrimination and equality should be included in constitutions.^[118] Embedding human rights protections in constitutions has improved respect for and knowledge of human rights in other states^[119] and makes rights and protections more accessible, tangible and understandable.^[120]

The Scottish Government wants to see a Scotland that is a world leader in incorporating, implementing and advancing equality and internationally derived human rights obligations in Scotland's constitution and beyond.

Independence would allow the Scottish Parliament to ensure that human rights protections in Scotland, including the UNCRC and the treaties and rights that are to be included in the Scottish Government's upcoming Human Rights Bill,^[121] cover both devolved and currently reserved policy areas.

The Scottish Government would support the permanent constitution continuing the rights and equality protections of individuals and communities covered by the interim constitution.

The Scottish Government would also support the permanent constitution containing a provision on non-discrimination in order to guarantee, explicitly, that constitutional rights and protections would apply to all people in Scotland, ensuring everyone has equal access to them.^[122]

In addition to a non-discrimination clause, the Scottish Government would support the permanent constitution going further and containing a positive provision to advance equality of opportunity for all.

Such provisions would provide enforceable legal protections, setting out the key rights of individuals and the obligations of state authorities. They would amount to a guarantee that human rights and equality protections in an independent Scotland would be more robust and effective than the protections that applied prior to independence. This would help to ensure that effective and accessible remedies are in place, so that the people in Scotland can hold public authorities to account when their rights have been breached.

This approach would reflect Scotland's commitment to international human rights obligations, which include an obligation to the principle of non-retrogression of human rights and to advance human rights.^[123]

Human dignity

The Scottish Government would support respect for human dignity being fully embedded in the permanent constitution of an independent Scotland.

Human dignity is the fundamental value that underpins human rights and a concept that research has found is well understood by the people of Scotland.^[124]

It is a principle that has been endorsed by Scotland's National Taskforce for Human Rights Leadership.^[125]

Human dignity is central to both international treaties and to many national constitutions. The Universal Declaration of Human Rights' preamble recognises the inherent dignity of all humans and Article 1 of the Declaration states that "All human beings are born free and equal in dignity and rights".^[126] The EU Charter of Fundamental Rights states that "Human dignity is inviolable. It must be respected and protected."^[127] Human dignity is also, for example, enshrined in the German constitution^[128] and the South African constitution.^[129]

Scotland has already legislated to reflect the importance of human dignity. The Social Security (Scotland) Act 2018 states that "social security is itself a human right and essential to the realisation of other human rights", and that "respect for the dignity of individuals is to be at the heart of the Scottish social security system."^[130]

Equality and non-discrimination

Principles of equality and non-discrimination are included in most constitutions across the world, although in a variety of forms.^[131] They guarantee that everyone is equal before the law and has a right to equal treatment, as well as the right to equal protection of the law.^[132] These principles form a vital function in constitutions and, without them, the human rights included in the constitution have little meaning or impact.^[133]

The Scottish Government would support the inclusion of a positive duty on those public bodies and any institutions or organisations specified in the constitution to work to end prejudice and discrimination and advance equality for all in the permanent constitution. It also supports exploring a possible provision on fostering good relations, which would help to ensure full alignment with the Public Sector Equality Duty^[134] and the Scottish Specific Duties.^[135]

Civil and political rights

Civil and political rights are currently incorporated into domestic law via the Human Rights Act 1998 and have constitutional protection in Scotland through the rights from the European Convention on Human Rights embedded in the Scotland Act 1998. These rights protect people's freedom from infringement by state institutions, organisations and individuals. They include the right to life, the right to a fair trial and freedom of thought and expression. These fundamental rights are vital for a democratic society.

Their inclusion in Scotland's permanent constitution could provide additional constitutional protections by, for example, ensuring that these rights protections cannot be amended or repealed with a simple majority in parliament.

The Constitutional Convention may also want to consider further provisions on public participation, reflecting the right to public participation in public affairs as expressed in Article 25 of the International Covenant on Civil and Political Rights.^[136]

Economic, social and cultural rights

The Scottish Government would support the permanent constitution including the economic, social and cultural rights as set out in the International Covenant on Economic, Social and Cultural Rights.^[137] Such an approach would reflect Scotland's commitment to individual and collective human rights and its transition to a wellbeing economy, where all economic activity should serve to meet everyone's basic needs and improve the collective health and wellbeing of the people in Scotland.

Economic, social and cultural rights are fundamentally important to quality of life and wellbeing and 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. These rights play a vital part in ensuring that the structural inequalities in Scotland and across the world are adequately addressed. This is particularly important considering the impact of the pandemic and the current cost of living crisis.

The Scottish Government also proposes that such provisions should include a constitutional protection of workers' rights, including the right to withdraw labour. The right to join a trade union and to strike is included in several international human rights treaties^[138] and in over 90 constitutions world-wide.^[139] The constitutions of Portugal^[140] and Sweden^[141] have, for example, provisions guaranteeing the right to strike.

Economic, social and cultural rights have increasingly been embedded in constitutions around the world.^[142] The right to health, for example, is included in some form in a slight majority of constitutions.^[143] Portugal's constitution, for example, states that "the right to health protection shall be fulfilled… by means of a national health service that shall be universal and general and, with particular regard to the economic and social conditions of the citizens who use it, shall tend to be free of charge."^[144] This has been shown to have a positive impact on the delivery of health services, even when factors such as the wealth of the relevant states is taken into account..^[145] The permanent constitution could continue to include the right to access a system of health care free at the point of need.

Including obligations regarding economic, social and cultural rights in constitutions ensures that, for example, courts will require government to take reasonable measures to realise these rights.^[146] The existence of such justiciable constitutional rights puts pressure on public authorities as duty-holders to act to realise rights more quickly.^[147]

Environmental rights

Embedding the right to a healthy environment would reflect Scotland's role as a leading nation in developing a wellbeing economy, ensuring that Scotland's economy is in service of our people and our planet. Alongside the right to a healthy environment, the permanent constitution could include specific content on the sustainable use of natural resources, Scotland's commitment to sustainable development and tackling climate change and the protection of the natural environment, including biodiversity.

Worldwide, 80 per cent of constitutions in force in 2020 included provisions on the protection of the environment.^[148] Article 24 of the constitution of Greece, for example, makes protection of the natural and cultural environment an obligation of the state and a right of individuals. It obligates the state to "adopt special preventative or repressive measures for the preservation of the environment in the context of the principle of sustainable development."^[149]

While a constitutional provision does not guarantee the fulfilment of the right to a healthy environment,^[150] the inclusion of environmental rights in constitutions has, overall, been linked to improved human rights and environmental outcomes, although the scale, precise language and scope of such provisions impact heavily on such effects.^[151] The Scottish Government recognises that it is vital that constitutional environmental rights are part of wider action across society on environmental rights and protections.

Land rights

The Constitutional Convention may wish to consider embedding the rights of communities to local land in the permanent constitution. This could build on the Scottish Land Rights and Responsibilities Statement,^[152] which is rooted in a human rights-based approach to land rights.

Human rights and equality monitoring and redress

Embedding human rights and equality in Scotland's constitution will not guarantee their realisation by itself. There will need to be a holistic approach focusing on realising of rights, including the implementation of legislation. It will be vital that the constitutional human rights and equality protections are effectively implemented, monitored and reported on and that remedies are available for those whose rights have been infringed upon.^[153] These remedies "must be provided in a timely, accessible manner and there must be the availability of reparations where it is needed."^[154]

The role of National Human Rights Institutions and the Equality Regulator

National Human Rights Institutions play an important role in ensuring that human rights are respected, protected and fulfilled, including by monitoring and reporting on the policies and actions of public authorities. Doing so promotes good practice and helps ensure accountability. Provisions covering National Human Rights Institutions are included in several constitutions.^[155] The UN considers that constitutional recognition of this kind is important in underlining the independent and objective role played by National Human Rights Institutions, as it enhances their standing within society in general and when dealing with other state institutions in particular.^[156]

Both the Scottish Human Rights Commission and the Equality and Human Rights Commission have important statutory functions under the current devolved settlement. Both are A-status UN-accredited National Human Rights Institutions, which are fully compliant with the requirements of the Paris Principles.^[157] At present the work of both bodies is governed by ordinary domestic legislation.^[158] In addition, the Children and Young People's Commissioner plays an important role in promoting and protecting the rights of children and young people in Scotland.^[159]

At present the UK has three separate, independent National Human Rights Institutions, reflecting the existence of the three distinct UK legal jurisdictions (Scotland, England and Wales, Northern Ireland). Recommended general practice is for a state to have only one UN-accredited National Human Rights Institution.^[160] After independence, the current distinction between devolved and reserved areas of responsibility would cease to be relevant and the Scottish Human Rights Commission would assume responsibility as Scotland's sole National Human Rights Institution. Provision would continue to be made to ensure that the separate equality functions of the Equality and Human Rights Commission (for example in acting as an equality regulator, or in bringing legal challenges in relation to equality matters) continued to be exercised by an appropriate, independent Scottish body, either as part of the National Human Rights Institution or separately.

Both the National Taskforce for Human Rights Leadership^[161] and the First Minister's National Advisory Council on Women and Girls^[162] have recommended increasing the Scottish Human Rights Commission's powers. This is something that the Scottish Government is considering, in consultation with the Scottish Human Rights Commission and the Scottish Parliamentary Corporate Body, as part of wider proposals for the new Human Rights Bill.^[163]

It would then be for a future Constitutional Convention to decide how best to incorporate rights and equality provisions in a permanent constitution, and whether to include a provision on what institution or institutions would be best placed to take on equality and rights functions.

Granting constitutional protections to independent regulatory and oversight government institutions could ensure that future governments are monitored and can be held to account, when necessary. The Constitutional Convention could also consider further enhancing the status of the National Human Rights Institution, which alongside other independent regulatory and oversight government institutions are independent of the three branches of government and can be used to hold them to account.^[164]

Democratic engagement and fostering a human rights culture in Scotland

The Scottish Government is committed to promoting democratic engagement and fostering a strong human rights culture in Scotland. Democratic engagement and a strong human rights culture mean that people understand and are able to access their rights and the democratic processes that protect and give voice to those rights. Scotland needs a broad human rights culture and a strong institutional framework that makes these rights and equality protections real and enforceable. This entails not just legislative but also non-legislative actions. It is vital that there is wide political and societal buy-in, ensuring that state authorities, civil servants, private organisations, civil society and the general public understand and work to promote, uphold and realise these rights. This reflects that democracy is a "universal benchmark for human rights protection."^[165]

The Constitutional Convention and the awareness-raising, consultation and engagement programme linked to it would play an important role in fostering such support and awareness, helping to ensure democracy and human rights become more embedded into the everyday lives of the people of Scotland.