One of the big incentives that will lead many Scots to putting a cross in the ‘Yes” box at the referendum is the prospect of gaining a written constitution. After all, the UK is the only country within the EU or the Commonwealth without a complete, written constitution.
If Scotland votes for independence in September, we’ll be faced with many imminent constitutional questions: What will be the relationship between citizen and state? Who will write the constitution? Will ‘ordinary’ Scots get to contribute? And, how can we all be included in the process?
The importance of knowing constitutional specifics cannot be underestimated, particularly when last year, the Conservative government promised to withdraw from the European Convention on Human Rights (ECHR) following a win at the next general election.
If there is a departure, all UK citizens face the threat of no longer being protected by the European Court of Human Rights (ECtHR).
In fact, the latest warning sign came only last week, when David Cameron announced plans for a British Bill of Rights that would mean that the UK parliament, rather than the ECtHR, would be able to decide what comprised a breach of human rights.
For instance, the ECtHR would likely find mass surveillance of the population by the GCHQ to be illegal, but without its jurisdiction, the spying can continue unabated and would likely become even more invasive.
With the UK’s human rights being put in question, the Yes campaign should be assuring Scots that we will be voting for a constitution, democratically written by the people come September.
To the Scottish Government’s credit Scotland’s Future states:
“Key equality and human rights principles, including the requirements of the European Convention on Human Rights, would be embedded in the written constitution.”
If this is the case, our new Scottish state would be bound by the jurisdiction of the ECtHR, so our human rights would retain existing protections. So, we are, in a sense, voting to remain under the protection of the human rights court and the convention.
But what else should we expect from our new Scottish constitution?
In the Scotland’s Future whitepaper, the SNP set out an inspiring, yet worryingly vague vision of an independent Scotland’s constitutional processes and what would be included (see page 351 onwards).
While the ultimate responsibility would lie with the new independent parliament elected in May 2016, the SNP will be in power during the negotiating period between a Yes vote and the elections of our first independent parliament.
It is important to know what influence the SNP, other parties as well as lobbyists, corporations and other entities will have during these crucial 18 months of negotiation – both in designing a constitution and interpreting the content thereafter.
The SNP have said many times that they will be only one of the voices drafting the constitution. So how do they envision the process unfolding, and where would the other voices come from?
In early 2013, Alex Salmond delivered a speech to the Foreign Press Association noting:
“In particular, Iceland is an example of modern technologies being used to harness enthusiasm of citizens as well as politicians in the renewal of their constitution.”
“Scotland’s convention will provide an opportunity for everyone to express their views. All political parties will be involved, together with the wider public and civic Scotland.”
Not long after this broad promise, the Scottish government released a document re-stating that a Constitutional Convention should be established in an independent Scotland to “ensure a participative and inclusive process where the people of Scotland, as well as politicians, civic society organisations, business interests, trade unions and others, will have a direct role in shaping the constitution.”
The same document again alluded to Iceland, with a strong emphasis on The Icelandic Constitutional Convention – established to review the constitution following Iceland’s devastating banking collapse – and even included a rough timeline of the country’s constitutional process (See page 8).
Then, quoting an unnamed SNP source in April, the Scotsman reported that the party intend to include a wide berth of people in the forming of the constitution, including people “from within all parties – former first ministers, former secretaries of state, political party leaders in Scotland” as well as those “beyond politics”.
Of course, no one is beyond politics, and contrary to referring to the people, this could mean that just about anyone may be included.
These promises of a democratically written constitution from the SNP may be inspirational prospects ahead of the referendum, but there is nothing concrete or specific. Still, these promises should not be forgotten. In fact, we must hold them to account and push for specific assurances, such as getting rid of Trident and retaining the ECHR.
With the party’s frequent references to the Icelandic model of constitution-building – using constitutional conventions, technology and social media-aided crowdsourcing to include the will of the people – it’s important (not to mention illuminating) to explore just how our Northern neighbours did it, and crucially, how successful, or indeed unsuccessful the process was.
How Icelanders crowdsourced a constitution
Following Iceland’s banking collapse in 2008, Icelanders initiated a ‘pots and pans revolution’, forcing their conservative and centrist coalition government to resign. After a new election, the centre-left Social Democratic Alliance gained the most seats, formed a coalition with the Left-Green Movement and promised a re-write of the constitution.
To represent the views of the Icelandic people, around 1000 randomly selected individuals (from a population of just over 300,000) were brought together in November 2010 to lay the foundations for a new constitution.
As Smári McCarthy, Icelandic activist and author – and someone who Bella Caledonia recently brought to Edinburgh to share his advice – described in an article for The London School of Economics:
“Over the course of a day, people young and old collected their ideas, their hopes and their dreams, on small tickets that then underwent a process of statistical aggregation and processing. This was done in multiple rounds: the first round collected very shallow but broad ideas, partially to get people’s creative juices flowing, partially to widen the space of thought. As the day went on, these ideas were processed down and filtered into a large set of statements about the contents of the future constitution.”
Divided into smaller groups of 10-12, the views of the people were compiled and the government held a national election to appoint a Constitutional Assembly where 25 non-politicians were elected from a list of 522 candidates. The Assembly then incorporated the public’s will in the drafting of the constitution for a period of almost four months. Throughout this time, citizens were able to comment on and critique content as well as propose new ideas through an interactive website, not to mention via social networking sites such as Facebook and Twitter.
According to McCarthy: “Most of these ideas were taken into account, and come August there was a document of enormous importance ready to be delivered to the parliament.”
Despite politicians being absent from the drafting of the constitution, it could not survive without their consent. According to Björg Thorarensen, a Law Professor at the University of Iceland and Agent of the Government of Iceland to the ECtHR, the constitution would have to face a bill of amendment across two consecutive parliaments with a general election in between.
Thorvaldur Gylfason, a Professor of Economics at the University of Iceland and one of Constitutional Assembly’s 25 representatives lamented that his country’s crowdsourced constitution was “killed by politicians”. He described his account of what went wrong in a comprehensive article for Open Democracy last year.
One notable reason was that ownership of natural resources and electoral reform were the most prominent issues raised by the Icelandic people. So, the constitution threatened to revoke “the privileges of those who benefit from unequal access to the country’s common-property natural resources as well as from unequal voting rights”.
Unsurprisingly, opposition politicians at the time (conservative and centrist) were already unhappy with the Assembly, which had the legal mandate to incorporate the desired rights of the national forum into the constitution.
There was also the issue of changes to the wording of the constitution made by the parliament’s constitutional and regulatory committee. This required another referendum in late 2012 where six questions would be put to the public to resolve the perceived problems – the most important of which asked: “Do you wish for a new constitution to be based on the recommendations of the constitutional council?”
Despite a resounding ‘yes’ from the electorate, “the referendum was non-binding.”
Only days after the referendum, the constitutional and regulatory committee chose a handful of lawyers to make linguistic changes to the constitution, which would again require further scrutiny and approval. Finally, when the time came for the bill to receive a final vote from parliament, yet another amendment had been made.
As Gylfason describes:
“The president of the parliament put the last-minute bill to a vote without first presenting the amendment, thereby failing to bring the constitutional bill to a vote, in violation of parliamentary procedure. This happened at 2 A.M. on the morning of the last session of parliament before recess. The enemies of constitutional reform carried the day and democracy was put on ice.”
Throughout the years, this barrage of legal and political barriers did not stop, and to this day, the Icelandic people’s constitution has never come into effect.
How the Icelandic Model could apply to an Independent Scotland
We only need to look back to the numerous accounts of the 1707 Act of Union to see that vested interest, bribery and the corrupting power of money overshadowed the sovereignty of the Scottish people. Protests arose in towns across Scotland, almost 100 petitions against the Act of Union were gathered, but deemed worthless “paper kites” by politicians.
Not dissimilar to the clandestine 2AM constitutional amendment in the Icelandic parliament, the Act of Union was signed by what Robert Burns referred to as “a parcel o’ rogues in a nation” in the depths of an Edinburgh cellar after questionable parliamentary voting schedules and in spite of politically powerless mobs storming the streets outside.
It is also instructive to remind ourselves that Scotland’s MPs in Westminster attempted to reverse the Union a few years later but they were powerless to do so. For 300 years, Scotland could no longer decide her own path, so the lesson is simple: get it wrong and the consequences will be with you for many generations.
Those were in the dark days before popular democracy. Of course, no country, nor the best interests of the people that live there, should be able to be so bought, sold or dictated by the few for want of money and power.
However, the Icelandic model has proved that even in the 21st century, countries, their resources, and the powers that dictate their future, are still wrestled over.
While Iceland’s crowdsourced constitution was eventually blocked by the political establishment, much of the process in which it was drafted was successful, democratic and backed by the public.
It is not difficult to imagine why many in office (and the external influence of vested interests) were so adamant to manipulate the process. To fully understand which parts of Iceland’s constitutional process worked and how things ultimately went wrong, it is worth reading the many different accounts of what occurred.
Also worth exploring are the similar constitutional conventions used in the Netherlands, Ireland and the Canadian provinces of British Columbia and Ontario. And, for crowdsourcing, the London School of Economics’ has already been experimenting with the prospect of crowdsourcing a UK constitution.
Studying the range of constitutional process around the world would allow us to adopt best practices while identifying and avoiding failures.
Whichever way we choose to write our constitution, we must be always conscious of how it could be irreversibly manipulated and undermined, if not blocked altogether.
The National Council for Scotland (backed by Alan Bissett and David Greig, to name a few) was established partly due to similar fears about negotiations with the rUK. Rather than leave the job to politicians, lobbyists and the rest of the establishment, the project aims to ensure that people are brought into the process, to stop an elite from ‘carving up’ an independent Scotland.
In the end, we must all be ready to be watchers when it comes to writing our constitution – discovering exactly who, besides the people, will play any role in writing, amending, approving or otherwise influencing the content, both directly and indirectly. Crucially, the people must lay the foundations that will protect the Scottish people for generations to come, and be willing to fight to ensure that the powers that be can’t tear it from our hands.
As for what will be included in our constitution, that responsibility belongs to all of us.
Images from Documenting Yestival and Thomas Quine
Guardian – Conservatives promise to scrap Human Rights Act after next election
BBC – Cameron sets his sights on human rights court
Guardian – Huge swath of GCHQ mass surveillance is illegal, says top lawyer
BBC – Tory ‘head bangers’ have won on human rights, says Nick Clegg
Scottish Government – Scotland’s Future Whitepaper
Scottish Government – People of Scotland to have written constitution
Scottish Government – Scotland’s Future: from the Referendum to Independence and a Written Constitution
The Scotsman – SNP prepares to heal referendum divisions
The London School of Economics and Political Science – Constitution UK – Utopia Lost: Lessons From Iceland
Bella Caledonia – Hacking a Scottish Constitution
Bella Caledonia – Crowdsourcing the Constitution
Bella Caledonia – A Choice of Paths
Open Democracy – From the people to the people, a new constitution
Constitutional Change – Why the making of a crowd-sourced Constitution in Iceland failed
Open Democracy – Democracy on ice: a post-mortem of the Icelandic constitution
Parliament UK – Mob unrest and disorder for Scotland
Scotsman – 300 years on, and where is the big party to celebrate Union?
Tech Dirt – London School Of Economics Wants To Crowdsource A Constitution For The UK
National Council – National Council For Scotland
The Herald – Move to stop politicians ‘carving up’ an indy Scotland