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Better which way?

16 December 13

The Journal invited supporters of the Yes and No camps for their perspectives on the public law aspects of the independence white paper

by Andrew Tickell, Ian Smart

A people’s constitution?

Andrew Tickell

The constitution “should be designed by the people of Scotland, for the people of Scotland”, drawn up by an “open, participative and inclusive” process, so proclaims the white paper. It’s a simple, but uplifting, thought. Its heart is in the right place, too. If September 2014 yields a Yes vote, it will be for each of us, every active citizen, to contribute to the great debate about what the fundamental legal norms of our society ought to be. Let there be no victor’s justice, no Nationalist constitution: after a bruising campaign, it represents an opportunity to reknit our divided kingdom.

That’s a grand idea but, inevitably, beyond these agreeable, fuzzy, democratic nostrums, things get trickier. Who decides what’s in it, what rights the constitution enshrines, and what institutions it entrenches? And how are they to be selected? Special election? Appointment? Random lot? These are not questions of technical detail: they speak to the principles undergirding the whole enterprise. Do we want an elite-led echo of the constitutional convention of the 1980s, or an innovative enterprise, sidestepping the usual worthies of “civic Scotland”? Politicians or punters?

The Government’s self-denying ordinance means it can only float proposals, not give firm commitments. The Law Society of Scotland wants to know what powers courts might have. Should we embrace American-style judicial review of primary legislation? And which court will have the final say? These are important questions – and liable to be controversial, if and when we gather to discuss them in earnest – but we cannot reasonably expect ministers to answer them now.

What we could reasonably expect, however, is much more of a sense of the values which the Government believes should inform the process, and the relationship between ordinary politics and this constitutional convention. The international parallels cited as having employed citizen-led processes – British Columbia, The Netherlands, Ontario, Iceland, Ireland – do little to clarify its thinking. The Canadian examples concerned not a constitution, but proposals to move towards more proportional electoral systems. Both schemes foundered. In Ontario, the 103-strong assembly’s recommendations were shot down by popular referendum. The proposals of their colleagues in British Columbia gained majority popular support, but died on the prongs of a qualified majority rule imposed by the legislature.

Iceland’s “crowd-sourced” constitution of 2010 met similar hurdles. Its text was framed by 25 people, chosen in a special election. Despite these pristine popular credentials, the draft still languishes on the shelf, after ordinary politics reasserted itself and Icelandic politicians exercised a pocket veto to avoid putting the radical proposals before the citizens.

The Irish Constitutional Convention, formed in 2012, is still sitting. Its composition is different again, consisting of 100 members: a government-appointed chairman, 66 electors, randomly selected from the roll to represent the population “in terms of sex, age, social class and region”, and 33 parliamentary representatives.

The lesson? These are fragile processes, apt to miscarry, particularly where the lines of authority are blurred. A people’s constitution is a fine motto, but the devil is in the detail.

Andrew Tickell is a socio-legal researcher and pro-independence legal blogger

What if it turns out differently?

Ian Smart

As solicitors, our job is all about “What ifs”. “What if” the two great friends entering into a partnership agreement today fall out in five years’ time about who has generated the greater profit, or been more responsible for a significant loss?

“What if” the witness you were relying on for an alibi doesn’t speak up, or doesn’t turn up at all?

“What if” the seller doesn’t actually offer vacant possession on the date of entry? Or if the purchaser doesn’t come up with the price?

“What if”, in the most common of process work, the deceased in a boringly routine testate executry turns out to have a second family no one else knew about?

Our job is to anticipate these “What ifs”.

And it is against that professional background that I find myself not dismissing the white paper, but rather encouraging every single solicitor in Scotland to read it.

For it does not allow for “What ifs”.

What if the European Union does not agree to “automatic” Scottish membership? Silence.

What if opposition to nuclear weapons on our soil is regarded as incompatible with membership by the existing members of the NATO alliance? Silence.

What if the residual UK is not prepared to allow us to share their currency on an ex gratia basis? Silence.

It is only fair for me to concede that, even if these questions could be answered, I would be an unlikely advocate of Scottish independence, but as a citizen of Scotland I am surely entitled to expect that a 670-page document, to which I have involuntarily contributed a share of the cost, would at least attempt to do so.

It does not. For the white paper is not really a document that proceeds on logic at all, but rather one which proceeds on the basis of faith alone.

Faith that, after independence, lower taxes and yet higher public spending might defy the laws of the market because... we’re Scottish?

Faith that we can abandon all the disadvantages of the Union (such as I, as a lifelong Labour man, would readily describe Tory Governments we didn’t always vote for), but yet retain all the advantages of that Union, such as a common energy market or indeed a common lender of last resort.

Faith that the United Kingdom, one of the greatest success stories in the history of the world, can be abandoned for something beyond a reasonable doubt to be even better.

Well, that’s my pitch. But I don’t ask you to buy it based on what I say.

I say instead, read the white paper and make up your own minds. And ask yourselves if you would recommend a client to sign a document with so many “What ifs” remaining unanswered.

Ian Smart is a solicitor in Cumbernauld, blogger and Scottish Labour Party member

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