In the general election of December 2019, the Scottish National Party (SNP) achieved a very good result and now considers itself even more entitled to pursue Scottish independence to avoid ‘Scotland being dragged out of the EU’ in the long run, starting with a second independence referendum in the near future. This is not an irrational idea as such, particularly in the light of three years of almost wilful incompetence of the government in London in its Brexit activities, which, if anything, only reasserted involuntarily the reasonableness of EU-membership.
However, one should be aware that nationalistic political independence movements always seek a power-grab for themselves in the region they want to free from some central powers; whether in Catalonia, in Scotland or in relation to the Brexit movement against Brussels. By “themselves,” I mean the political class not the people, who may only be tricked into populist referenda to democratically legitimise a more controlling, less democratic regime without interference from, or legal or political recourse to, a central power which could provide constitutional checks and balances that would hold the regional or new national government to account.
Not only are the pro-Brexit Tories a good example of that strategy, this could also apply to the SNP. Why would a nationalist party advocate EU membership when the EU was founded precisely to overcome nationalism? At least the SNP does not make any relevant preparations about improved economic independence or forging political relations to (smaller) countries in the EU, such as Denmark, the Netherlands or Austria.
I am still unconvinced that the SNP really wants to lead a new independent Scotland into the EU. The SNP only brings up EU membership as a persuasive argument to achieve independence more easily. It will then blame the EU for perhaps turning down an application to join, which was in truth not a great concern to them in the first place. In any case, the EU would be ill-advised to contemplate EU membership for an independent Scotland (perhaps now via the EEA) if its present constitutional situation remains unchanged - and the SNP does not seem to do much about that.
For me, as a legal academic originally from the European continent and trained in a longstanding constitutional tradition, it is astonishing to see that neither the SNP nor any other political party shows any interest in quickly drawing up a constitution for an independent Scotland that could first serve as a regional constitution (like in countries with a federal system) and then, if independence takes place, as a national constitution, at least for an interim period. A constitution would of course clip the wings of the political powers, and so the SNP, at least in its White Paper published in 2014, only vaguely hinted at some constitution after independence without any interest in a clearer and legally precise draft document.
As a result, an independent Scotland after 2014 could have become an absolute monarchy – as the monarchy was supposed to be retained – without a constitution for an undefined provisional period and with unfettered political powers of the majority party, the SNP, being an executive or government based on the prerogative powers of the Crown. One may also ask whether a new state in the twenty-first century should start as a monarchy, and if so, who the future Scottish royal family is supposed to be. In any case, the powers of the Crown must be defined and controlled by a written constitution, and the backward extra-constitutional prerogative powers of the Crown must be abolished altogether.
A Scottish constitution would have to regulate that English people who live in Scotland are Scottish citizens for the purpose of the law, and how they feel about themselves otherwise is not the law’s business. That must apply to all minorities, ethnic or otherwise. There must be individually enforceable human rights - including some social rights - and control of the constitutionality of the law-making process and of legal acts by the executive before a constitutional court (perhaps in Glasgow, so that not all authorities are concentrated in Edinburgh).
There must be a fiscal system and a Scottish central bank, and a plan as to the sharing of the public debt between the new state and the rest of the UK on separation. A decision must be made whether Scotland is to be more centralist or federalist and what the competences of the regions are and how these exercise them. All that and much more must be regulated in a constitution: it is the founding document of a state.
There cannot be a modern state without a constitution. This is not just a pastime for lawyers: a state is first and foremost a legal institution. There has to be a fully working draft constitution in place and publicly available well before the referendum, otherwise there is no subject to decide on. The question ‘Should Scotland be an independent country?’ in a new referendum would be empty and worthless. In a referendum campaign, such a void would typically be filled with racism, nationalism and meaningless promises, as in the existing populist movements across Europe. The current lack of constitutional arrangements in Scotland is rather the recipe for a failed state and for future civil war.
The EU has recently turned down two countries which sought EU membership - and these had functioning constitutions. The EU would be foolish if it considered EU membership for Scotland without a modern constitutional system and with perhaps a raucous nationalism instead (as if the EU does not have enough of that), especially since the EU has now luckily got rid of the eternal troublemaker, Britain. Economically Scotland, with a population the size of less than two-thirds of Greater Paris, is entirely irrelevant for the EU, so politically it cannot afford to be difficult.
Unfortunately, there seems to be no drive for a constitutionally-informed debate from Scottish legal academics either. This is partly because Scottish constitutional lawyers are trained as British - that is, mostly English - constitutional lawyers, who hold the belief that Britain has an unwritten constitution and needs no other, an idea that should finally have been laid to rest in the Brexit debacle. The EU Withdrawal Agreement Bill that has just passed through the British Parliament confirms this. It contains many sweeping powers for the government in delegated legislation which are only possible because of the absence of a proper constitution.
However, in my experience as a European legal academic in Scotland for almost twenty years, Scottish legal academics are not interested in comments or warnings by lawyers with a non-Scottish legal background. Therefore, a study of foreign, “un-British” and “un-Scottish” constitutional systems hardly exists, even in relation to the USA where the material would be available in English. It seems that in Scottish academia, there currently is not much interest in - let alone any expertise for - drafting a new Scottish constitution.
It is not uncommon that local constitutional specialists are not consulted in the drafting process of a constitution. At the time of the making of the US-constitution, there were not even any constitutional specialists, and the draftsmen of the German Basic Law in 1949 did not rely much on an input by legal academics, mostly because of the role many of them played during the National Socialist regime a few years earlier. It will probably be inevitable that the first draft for a Scottish constitution would come from European or North American lawyers who would have the necessary expertise and craftsmanship.
Also, a constitution should not be drafted by overtly specialist scholars, but rather by all-rounders. A constitution, though very technical, has to be eminently practical otherwise it will not work, and it has to be popular without being populist, so some civic involvement is important in its making. And a functioning constitution would have to be written in proper and clear English, unlike the Scotland Act 1998 which is a constitutional document neither in substance nor in style.
An accession of an independent Scotland to the EU ought to require Scotland to become a modern European country constitutionally, as part of an alignment with the acquis communautaire of the EU in membership negotiations. Those who canvass for another independence referendum and those who vote in it should bear that in mind.
- Andreas Rahmatian is a professor of law at the University of Glasgow in Scotland.
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