A draft constitution for the Scottish state

The constitutional scholar Dr. Mark McNaught, who is a Professor of Law, Philosophy, and US Civilization at the University of Rennes, is one of those who has been attempting to devise a draft constitution for an independent Scottish state.  Other groups and individuals have also been working on similar projects.

This draft is not intended as the last word on a Scottish constitution, it is intended as a discussion document to help promote discussion and debate about the contents of a written Scottish constitution which is fit for the 21st century. 

Within a few weeks Mark hopes to put this document on a Wiki style platform in order to allow all those who are interested to revise and add to this document with the aim of producing a truly crowd-sourced Scottish constitution.

This document has been produced by Mark, together with input from Gordon Ross and many others.  It’s being published here so that you too can have your say, make your suggestions, and contribute your views and opinions.  Naturally we can only establish a Scottish constitution once independence has been won and it is a conversation which must involve everyone in Scotland, including those who currently oppose independence, however the idea behind this initiative is that when Scottish independence is achieved, we will be able to have a more informed and productive debate about the precise contents of the constitution of the Scottish state because many people will already have been thinking about and discussing constitutional matters.

The Constitution of the Scottish State

Preamble

We, the people of the sovereign, free and democratic State of Scotland, for the love of our fair nation and proud countrymen and women, do hereby express and enact our collective will through this Scottish Constitution, the supreme and fundamental law of Scotland; which holds that the founding principles of the Scottish State are popular sovereignty as the sole basis for legitimacy, human rights for all, including equality, freedom, justice and the search for happiness. This constitution hereby provides, in these detailed articles, a basis for the continual application and respect of these constitutional rights across all of Scottish governance and society. All Acts of Parliament, treaties, regulations and other laws, whether enacted past, present or future, to the extent that they are incompatible with this Constitution, will be void and without effect.
Scottish Social Compact

The Scottish Government shall, to the fullest extent compatible with Scottish and EU law and constitutionally prescribed competences, have the principal objective of improving the lives and promoting the social mobility of all living in Scotland through the equitable provision of basic positive rights to assure individual liberty and nurture fulfilling lives. The Scottish State shall invest in public services to help provide a secure, stable and inclusive society for all which shall encourage people’s talent, enterprise, and ambition. These shall include but not be limited to the provision of healthy food, education, housing, employment, social welfare benefits, and health care adequate to lead a dignified life.

In exchange, the citizens of Scotland shall commit to benefitting from these rights by engaging in productive, harmonious, and constructive civic life at all levels of government and communities, and allocating their innate talents to the further improvement of Scotland and its citizenry.

Article I – Foundational and Symbolic Principles

Section A: The City of Edinburgh shall be the capital of Scotland. Parliament shall have the power to seat elsewhere under terms established by the Corpus of Scottish Law (CSL hereafter: explained in Article 3).

Section B: The official languages of Scotland shall be English, Scots, and Gaelic.

Section C: The national flag is the cross of St Andrew, blazoned azure, a saltire argent.

Section D: The national anthem shall be determined by the CSL.

Article II – Individual Liberties, Rights, and Obligations

The following liberties, rights, and obligations shall be conferred on all Scottish citizens, legal residents, both individuals and collectives. No individual or collective can be discriminated against on the basis of sex, ethnicity, origin, language, beliefs, physical, mental or ideological diversity, age, genetic characteristics, membership in a national minority, sexual orientation or gender identity, or any other personal or social circumstance or characteristic. There shall be no limitation upon their exercise except to prevent or penalise acts calculated to infringe on the rights and liberties of others, or forcibly to subvert the constitutional order that guarantees these rights and liberties. The rights and privileges guaranteed to persons under this Constitution and the CSL hereon extend only to human beings and human collectives; the extent to which such rights and privileges may be extended to corporations and other legally sanctioned entities shall be determined by the CSL.

Section A: Equity of Rights
§ 1. All citizens and residents of Scotland, regardless of their status, will be equally treated and protected under the CSL. Provision shall be made to assure gender parity in representation and pay at all levels of the public and private sector.
§ 2. The Scottish state is secular, and shall not establish, favour, nor disfavour any religion, and shall work towards the appeasement of religious and sectarian conflict in all forms. All religious and religiously owned institutions shall be subject to civil law, regulation, and taxation, with limited exceptions granted for acts and rituals which are demonstrably central and sincere to individual religious practice, and do not violate this Constitution or the CSL.
§ 3. Social equality being the essence of this Constitution and the Scottish polity, no ‘aristocratic’ or ‘noble’ titles or names shall be conferred or recognized by the Scottish State for any purposes. No law which perpetuates social castes, including primogeniture law, shall be recognized, promulgated, or applied. All human beings shall be treated equally under the law.

Section B: Fundamental Individual Liberties: The Scottish government shall pass no law infringing upon the following liberties, and shall structure the CSL and corresponding Scottish State institutions to guarantee the following:
§ 1. The freedom of speech, writing, publication, and of the expression of opinion with narrowly prescribed exceptions for demonstrably injurious discourse.
§ 2. The freedom of thought, of conscience, and of religious practice; including to not believe or participate in any religion.
§ 3. Autonomy of all persons over their bodies; including reproductive rights, the medical termination of pregnancy, and voluntary euthanasia as prescribed by the CSL.
§ 4. All men and women of marriageable age have the right to marry and to found a family in accordance with their beliefs and sexual orientation.
§ 5. The right to peacefully assemble and form associations for any lawful purpose.
§ 6. No law shall abridge the right of every person to freely form a union in their place of work, collectively bargain with their employer, to strike without state opposition, and the CSL shall penalize any infringement of this right. Every person has the right to conditions of work which are fair, healthy, and which respect the dignity of the person. A living wage shall be established by the CSL, to assure that no person working full time will live in poverty.
§ 7. The right to privacy in his or her personal affairs, family life, home, and correspondence. Consistent with technological advancement, provision shall be made by law to safeguard personal data and information, and preserve privacy and security in communications and transactions conducted through electronic media.
§ 8. The right to hold private property, and to the peaceful enjoyment of his or her property. Nothing in this clause shall invalidate any tax, duty or custom levied in accordance with the CSL, or an environmental regulation imposed on the development or use of land or natural resources.
§ 9. The right to a healthful environment, including clean air and water and a climate hospitable to life and supportive of agriculture. Provision shall be made in the CSL for the protection of the environment and for restrictions on the development of land and natural resources in furtherance of this clause
§ 10. Every person shall have access to governmental information, and the state shall exercise transparency in all functions.
§ 11. Every person shall have the right to physical safety. All firearms for those who are not on-duty police and military personnel are banned, with very limited exceptions granted for single-shot hunting rifles to be regularly licensed and stored according to the CCL.

Section C: Positive Social and Economic Rights: The Scottish Government shall be constitutionally bound to progressively assure for all, regardless of income, that:
§ 1. Every person has the right to have access to housing adequate to lead a dignified life.
§ 2. Every person will have a pension adequate for their dignity and well-being.
§ 3. Every person will have sufficient state-funded physical and mental health care to lead a dignified life.
§ 4. Every person shall have access to a state-funded education which allows them to reach their potential.
Section D: The Rights of the Accused: The Scottish Judiciary shall be bound to respect the following rights in all civil and criminal cases.
§ 1. Persons will be deprived of liberty only in accordance with due process.
§ 2. Every person who is arrested, or detained shall be informed as soon as is possible of the evidence and charges against them.
§ 3. Every person who is arrested or detained shall be brought before a competent court and tried as soon as possible.
§ 4. Every person has the right to fair and impartial judicial proceedings.
§ 5. Trials shall be conducted in public and judgment shall be pronounced publicly. Recordings will be made of all proceedings, with exceptions specified in the CSL.
§ 6. Every person charged with a criminal offence shall be presumed innocent until proven guilty.
§ 7. To be rapidly informed of the charges, in a language which he or she understands
§ 8. To have adequate time, facilities, and resources to prepare a defence, and to privately confer with counsel.
§ 9. To be defended in person or through a legal practitioner of his or her own choosing.
§ 10. To financial assistance necessary to secure adequate legal assistance. An adequately staffed and funded public defenders office shall be established, that each lawyer has a reasonable caseload to provide quality counsel.
§ 11. To have compulsory processes to summon and examine witnesses in his or her favour.
§ 12. To have all proceedings in court connected with the charge against him or her translated by a competent interpreter into the language which he or she best understands, if that language is not the language of the Court.
§ 13. Everyone convicted of a criminal offence shall have the right to appeal their conviction to a higher tribunal, on grounds specified in the CSL.
§ 14. The right to trial by jury shall not be suspended, restricted, or abridged.
§ 15. No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation or repay a financial debt.
§ 16. No person shall be subjected to torture, or to inhuman or degrading treatment or punishment, nor condemned to death or executed.
§ 17. No person shall be held in slavery or servitude, nor shall any person be required to perform forced or compulsory labour.

Section E: Civic Obligations
§ 1. All citizens and legal residents of Scotland, regardless of domiciliation status, shall be automatically registered to vote at 16 years of age, which cannot be revoked under any circumstances. Voting shall be conducted using the most modern technology available to assure 100% participation, and all citizens and legal residents shall be able to participate on all electoral levels.
§ 2. All citizens and legal residents of Scotland not in detention shall be required to serve on juries, with reasons for discharge to be prescribed by the CSL

Article III – The Corpus of Scottish Law

Section A: Purpose of the Corpus of Scottish Law
§ 1: The CSL shall make the entire Scottish legal code transparent and readily available online to all citizens and legal residents, that all may understand and follow the law under all circumstances.
§ 2: The CSL shall be written in the clearest, most understandable language, syntax, punctuation, and wording possible, employing the simplest most broadly understood words available, that all citizens and legal residents clearly understand the law, preventing its misapplication and exploitation, seeking to universally assure equality of access to and treatment under the law.
§ 3: The CSL shall be structured to be continuously updated to be fit for purpose for the political and economic circumstances of the future, eliminating the need for public administrations to develop separate regulations to enact law. Mechanisms shall be established for the administrations and civic groups to play a direct role in modifying the CSL in their respective administrative spheres. This has the intended purpose of reducing the time and energy elected representatives spend on enacting legislation, allowing them to devote maximum time to advocate for the issues and interests of their constituents.

Section B: Structure of the Corpus of Scottish Law
§ 1. The Corpus of Scottish Law shall be in the form of a single unified online document which shall be the authoritative source of law and regulation for Scotland.
§ 2. The CSL shall be divided into spheres of law and further subdivided into domaines, and any others developed by the constitutional and legal system created.
§ 3. The structure of the spheres shall include the following:
The object, purpose, and aims of the sphere of law
The rights of citizens and legal residents (identical) in the sphere of law, which shall have constitutional status to amend
The administration competent to apply the sphere of law, its structure, and its laws of operation
The applicable law regulating the sphere, subdivision into domaines, and the methods of application
Mechanisms enabling appeal and remedies on valid grounds.
Mechanisms to adapt the law to maintain fitness for purpose.
§ 4. The CSL shall complement and be bound by this Constitution, European Union Law, mechanisms for citizen participation, and international treaties and conventions to which Scotland is signatory.

Article IV – Electoral integrity, electoral rights, and Citizen Referenda

Section A: Fundamental procedural protections for elections, referenda, campaign finance, and anti-corruption
§ 1. The Scottish Electoral Audit Board shall oversee and apply Electoral Law, and shall have the authority to overturn election and referendum results if sufficiently flagrant violations occur, as specified in the CSL.
§ 2. The CSL shall establish an enforceable Code of Conduct for all candidates, elected officials, and civil servants, to assure that only people of impeccable honesty, integrity, and intelligence are qualified to hold office.
§ 3. The CSL shall regulate fundraising of parties, campaigns, officeholders, and civil servants, to get as close to a complete absence of corruption as is humanly possible.
§ 4. The CSL shall regulate the duration for all elections and referendum campaigns, to assure minimal disruption to the proper functioning of government.
§ 5. The CSL shall assure the methodological integrity and accuracy of all research groups, studies, polls, campaign literature, and surveys which inform campaigns.

Section B: Citizens’ and legal residents’ electoral rights
All citizens and legal residents have the inalienable right:
§ 1. To participate in public affairs under equal conditions, either directly or through freely elected representatives in periodic elections of proven transparency, validity, and accuracy.
§ 2. To run for office as a candidate for any political or representative office under equal conditions and according to the requirements specified in the CSL.
§ 3. To participate in the parliamentary law-making process, either directly or through associations.
§ 4. To promote recall elections of elected officials, citizen legislative initiatives, and citizen initiative referenda, within the forms and conditions stipulated in the CSL.
§ 5. The CSL shall incorporate mechanisms for citizen and legal resident participation, and shall regulate the exercise of these rights.

Section C: Referenda
A referendum is a binding consultation through popular vote over issues of vital importance, or legal provisions of regional, national or international scope. Initiatives that reduce rights and guarantees shall not be the subject of a referendum proposal. Referenda may serve the following purposes:
§ 1. Recall elections of elected officials and civil servants
a. Citizens can request a recall referendum for any public employee or non-elected office-holder in cases of serious neglect of their duties, or direct harm to the functioning of the public services they are responsible for.
b. The Citizen Participation and Referenda section of the CSL shall establish the requirements and conditions for holding citizens’ recall initiatives.
§ 2. Citizen Constitutional and Legislative initiatives
The CSL shall provide mechanisms for citizens to:
a. totally or partially reform this Constitution.
b. amend or supplement the CSL in any sphere.
c. determine membership in collective security and defence agencies and/or supranational organizations
e. appeal executive decisions
§ 3. Conflict resolution referendum
a. In matters of great importance to citizens, the President of the Scottish State or the Parliament may call upon the Scottish Electoral Auditor Board to hold a referendum to settle a situation of institutional conflict.
b. The Board shall also consider other conflicts to resolve through referendum.

Article V – Two alternatives Articles for Head of State : Maintaining the Hereditary UK Monarchy or directly electing the President of the Scottish State

Option 1 : Maintaining the UK Monarchy
Note : This Article was extracted and structurally adapted from Elliot Bulmer’s 2013 ‘A Model Constitution for Scotland’, and represents a constitutionally serious and valid means to maintain to the UK monarchy within a written Scottish constitution. This Article has not been adapted to fit within this constitution, but certainly could be if it was democratically decided during the constituent process to retain the UK Monarch. The Bullmer text and the meaning of the articles referred to can be found here.

Article V – The Head of State

Section A. The office of Head of State shall be vested in Elizabeth Windsor, and shall be hereditary in her heirs and successors, according to the laws of succession, regency and exclusion enacted by Scotland’s Parliament.

Section B. The Head of State shall be paid a Civil List, as determined by law, from which the expenses of the Royal Household in Scotland shall be defrayed. The royal accounts shall be open to scrutiny by Parliament.

Section C. The Head of State shall possess only such powers and functions as are expressly vested in him/her by this Constitution, and shall, where so stated, exercise these powers and functions solely with the advice and consent of the responsible constitutional authorities, as follows:
Subsection 1. Representing the liberty, independence and integrity of the Scottish nation, presiding over public ceremonies, and addressing the people on civic occasions and at times of crisis or emergency.
Subsection 2. Dissolving Parliament on the advice of the Presiding Officer in accordance with the provisions of Sections (5) to (8) of Article III.
Subsection 4. Granting or withholding assent to legislation, in accordance with the provisions of Section (17) of Article III.
Subsection 5. Appointing and dismissing the Prime Minister, in accordance with the provisions of Sections (2) to (6) of Article IV.
Subsection 6. Appointing members of the judiciary in accordance with the provisions of Section (3) of Article V.
Subsection 7. Granting pardons on the advice of the Minister of Justice in accordance with the provisions of Section (11) of Article V.
Subsection 8. Appointing certain members of Independent Commissions in accordance with the provisions of Section (5) of Article VIII.
Subsection 9. Acting as Sovereign of the Order of the Thistle, and awarding civic honours, according to law, in recognition of public services.
Subsection 10. Serving as the ceremonial Commander—in—Chief of the Armed Forces, accrediting and receiving ambassadors, and performing other associated duties, as directed by the Council of Ministers.
Subsection 11. Appointing officers of the Royal Household and Great Officers of State whose appointment is not otherwise provided for by this Constitution or by law.
Subsection 12. Attending the General Assembly of the Church of Scotland, in recognition of its legal status as a national church.
During the absence of the Head of State from Scotland, or inability to perform his or her duties, the constitutional powers and functions of the Head of State stated in Section (4) of this Article may be delegated by letters patent to a ‘Lord High Commissioner’, who shall act as the official representative of the Head of State. Subject to any provisions prescribed by law, the Lord High Commissioner shall be appointed by the Head of State, on the joint nomination of the Prime Minister and the Leader of the Opposition, and shall hold office during the Head of State’s pleasure. No Member of Parliament, nor Minister, may serve as Lord High Commissioner.

Option 2 : Elected President of the Scottish State

Article V – The Presidency of the Scottish State

Section A: The President of Scotland shall be elected by universal popular vote, and shall exercise the following functions:
§ 1. Representing the liberty, independence and integrity of the Scottish nation, presiding over public ceremonies, and addressing the people on civic occasions and at times of crisis or emergency.
§ 2. Dissolving Parliament on the advice of the Presiding Officer.
§ 3. Withholding assent to legislation only in cases of legitimate demonstrable questions over its constitutionality.
§ 4. Appointing members of the judiciary.
§ 5. Granting pardons on the advice of the Minister of Justice
§ 6. Appointing members of independent commissions as prescribed by the CSL.
§ 7. Awarding civic honours in recognition of public service.
Section B: Election of the President of the Scottish State
§ 1. All citizens and legal residents living in Scotland over 25 years of age shall be eligible to run for President.
§ 2. The Presidential term shall last 5 years, limited to two terms.
§ 3. The President shall be elected in a two-round process. In the first, all party nominees qualified by the Scottish Electoral Audit Board shall be voted upon in a single ballot. If one candidate receives in excess of 50% of the vote he/she shall win the election.
§ 4. If no one candidate receives more than 50% of the vote in the first round, a second round vote between the two candidates who received the most votes shall be held two weeks after the first round. The candidate who receives more than 50% of the vote shall be elected president.
§ 5. The presidential and parliamentary campaigns shall be held under the same law, and limits.
§ 6. The President shall be sworn in one month after election.
Section C: Succession and impeachment
§ 1. In the case of death or incapacitating injury or disease of the President, the Presiding Officer will assume the functions of the Presidency pending a new election within 60 days.
§ 2. The President can be impeached with according to procedure in the CSL. Allegations deemed sufficiently grave for impeachment shall include, but not be limited to, gross violations of universally applied law and/or personal misconduct.
Section D. Impeachment shall not offer immunity from prosecution for any crimes committed.

Article VI– Parliament

Section A: Ultimate authority to amend and/or expand the Corpus of Scottish Law shall be invested in a unicameral Scottish Parliament.
§ 1. The Sphere of Parliamentary Law shall regulate the Scottish Parliament in the following areas.
a. The eligibility requirements for election.
b. The total number of Deputies, which shall not be fewer than 120 members, nor exceed 200 members.
c. The duration of Parliamentary terms.
d. The process whereby the Prime Minister is elected.
e. The process of Parliamentary dissolution.
f. How Parliamentary vacancies shall be filled.
g. How the Presiding officer shall be chosen.
h. The process of Parliamentary sessions and adjournments.
i. The composition and functioning of its corporate bodies.
§ 2. The Constitutional Commission shall oversee any modification and/or addition to the CSL to assure full conformity with the following criteria:
All must conform to this Constitution.
All research which informs the CSL must be verifiably based on empirical science employing sound, valid, and coherent methodology.
All changes to the text of the CSL must conform to the linguistic and stylistic standards of the CCL (III,A,2).
Any changes must demonstrably improve individual rights, broaden participation in the democratic process, and/or improve the legal functioning of Scottish State institutions for the broadest possible social benefit.

Section C: Additional Parliamentary Powers
§ 1. Parliament shall have the power, in time of war or public emergency, to extend its term of office for a period not exceeding 12 months, by means of a resolution passed by a two-thirds majority of its members.
§ 2. The Parliament shall have the competence to appoint select committees to inspect and oversee the government and to scrutinise modifications or additions to the CSL.
§ 3. Parliament shall have the authority to form administrative agencies to regulate the various sectors of the Scottish society and economy. Appointees and administrators heading these agencies shall demonstrably have appropriate and relevant experience to lead the agency for the betterment and improvement of its efficacy and benefits for broader society.
§ 4. Parliament may appoint Commissions and Boards of Enquiry under terms of the CSL, and the composition, duration and remit shall be specified by parliamentary resolution.
§ 5. Parliamentary committees, Commissions and Board of Enquiry shall enjoy the authority to subpoena official documents, files and other evidence, and the power to summon Ministers and other officials for hearings where they are compelled to answer the questions.
§ 6. Parliament, its committees and commissions, shall be open to the public and accredited press, and systematically video recorded unless a closed session is authorised, by a two-thirds majority vote, on the grounds of military secrecy or diplomatic security. A designated web site shall live-stream all proceedings and archive all footage for citizen’s access.
§ 7. The CSL shall specify the method for designating the Presiding Officer
§ 8. There shall be a Consultative Assembly to advise and assist Parliament and the Council of Ministers on matters of legislation and policy under terms established in the CSL. The Consultative Assembly shall consist of sixty members appointed in the manner prescribed by the CSL on a vocational and functional basis:
a. Twenty shall represent trade unions and craft and artisan guilds.
b. Ten shall represent chambers of commerce and small businesses.
c. Ten shall represent academia and the learned professions.
d. Ten shall represent farmers, crofters and rural interests.
e. Ten shall represent religious and charitable organisations.

Section D: All members of Parliament shall:
§ 1. Enjoy the freedom of speech and debate in Parliament, subject to the CSL sphere of Law of Parliament.
§ 2. Enjoy the freedom to vote in accordance with their consciences, free from imperative mandates, corporate and financial lobbying, binding pledges or intimidation.
§ 3. Be entitled to a moderate salary, and other incidental allowances which shall not exceed 50% of their annual salary, with limited legally justifiable exceptions, to be automatically published.
§ 4. Be subject to all of the same laws, regulations, and obligations as the rest of the population.
§ 5. Be majority-time resident in the constituency they represent for at least the three years previous to their election, and other eligibility requirements specified in the CSL.
§ 6. The CSL shall be modified over time to assure adhesion to these principles.

Article VII – The Council of Ministers

Section A: The executive power shall be vested in the Council of Ministers, which shall consist of a Prime Minister, a Deputy Prime Minister, and such other Ministers (including Junior Ministers and Ministers-without-portfolio) as may be required to conduct the Government of the State and represent the administration they lead under terms established in the CSL.

Section B: The Prime Minister shall be elected by Parliament from amongst its members, by open ballot and a simple majority vote. The duly elected Prime Minister-designate shall then be appointed by the President.

Section C: A Prime Minister shall be elected and appointed within 30 days after each parliamentary general election, and within 30 days after the death, resignation, or removal, of the former Prime Minister; and if a Prime Minister has not been elected during this time, Parliament may be dissolved, in accordance with the CSL.

Section D: The incumbent Prime Minister shall continue in office, following a general election, until their successor be elected and appointed in the manner prescribed in this Article; and during the interval between the death, resignation or removal of a Prime Minister, and the appointment of a successor, the Council of Ministers shall act in a caretaker capacity.

Section E: The Prime Minister shall be responsible to Parliament and shall be removed from office by the President if a vote of no-confidence is passed by Parliament by an absolute majority vote.

Section F: The Prime Minister may submit his/her resignation to the President on the grounds of illness, incapacity, or other due cause, but the resignation shall become effective only when endorsed by Parliament.

Section G: All other Ministers (including the Deputy Prime Minister, Ministers-without-portfolio and Junior Ministers) shall be appointed by the Prime Minister. They serve during the Prime Minister’s pleasure, but may be removed by a vote of no-confidence passed by an absolute majority and/or a citizens initiative.

Section H: The total number of persons holding ministerial office (including the Deputy Prime Minister, Ministers-without-portfolio and Junior Ministers) shall not at any time exceed one-fifth of the membership of Parliament. The Ministers shall be appointed from amongst the members of Parliament; provided, that up to one-third of the Ministers may be appointed from outside Parliament, on account of their specialist knowledge, experience, and qualifications. Ministers shall have relevant and extensive experience in the area over which they have ministerial competence, and clearly demonstrate a commitment to consistently improve its operation for the betterment of society.

Section I: The Council of Ministers, subject to the Constitution and the CSL, shall determine all matters of foreign and domestic policy. It shall direct the administration, conduct foreign relations, manage public finances, and ensure that the CSL is duly implemented and enforced. It may prepare draft legislation, and other business, to lay before Parliament.

Section J: The administrative officials, subordinate to the Council of Ministers, shall be organized as a permanent, professional and non-partisan civil service, which shall be based upon merit and shall be regulated by the Public Service Commission in accordance with the CSL.

Section K: The Prime Minister may appoint a number of Special Advisors, not exceeding 12, to advise and assist the Prime Minister in the preparation and delivery of policies. Special Advisors shall serve at the pleasure of the Prime Minister. They shall not be members of the permanent civil service, nor have any connection to undeclared outside interests, nor members of Parliament, but are subject to the Code of Conduct for public servants.

Section L: High command of the Armed Forces, subject to the Constitution and the CSL, shall be vested in the Council of Ministers.

Section M: No treaty or international agreement of any kind shall come into effect unless it is ratified by Parliament (either by a majority resolution or, to the extent that it concerns domestic law, by enabling legislation). Treaties delegating legislative, administrative, judicial, military or fiscal powers to a confederation, union, alliance or international organisation shall take effect only if ratified by a two-thirds majority of Parliament.

Article VIII – Judiciary

Section A: The judicial authority shall be vested in the Supreme Court, the Court of Session, High Court of Justiciary, Sheriff Courts, and such other Courts and Tribunals as may be established by the CSL.

Section B: The Supreme Court shall consist of seven members. It shall have final binding appellate jurisdiction over all questions concerning:
§ 1. The validity of modifications and additions to the CSL, treaties, under the terms of this Constitution.
§ 2. Constitutional judicial review and interpretation.

Section C: Judges of the Supreme Court, members of the Court of Session and High Court of Justiciary, Sheriffs, and all other members of the judiciary, with the exception of Justices of the Peace, shall be appointed by the President, on the advice of the Judicial Appointments Commission.

Section D: The Judicial Appointments Commission shall consist of the following members:
§ 1. The Minister of Justice, as convenor;
§ 2. The Advocate General, as deputy convenor;
§ 3. Two Senators of the College of Justice elected by their peers;
§ 4. A representative of the Faculty of Advocates
§ 5. Five lay representatives of the public, not being members of the judiciary or the legal profession, elected by Parliament for four-year terms.

Section E: Members of the judiciary shall serve a maximum of 2, 5-year terms during good behaviour. They may only be removed on the grounds of misconduct, neglect of duty, or incapacity, by means of a motion of censure passed by a two-thirds majority vote of Parliament, on the advice of the Judicial Appointments Council. The Judicial Appointments Council shall have the authority to suspend a judge, on full pay, for a period of up to three months, pending the outcome of Parliament’s decision in his/her case.

Section F: Judicial office shall be incompatible with all other public offices and with membership of any political party. Additional incompatibilities may be prescribed by the CSL.

Section G: The salaries and privileges of members of the judiciary shall be determined by the CSL, and shall not be diminished during their tenure.

Section H: Members of the judiciary shall be reassigned after their terms, or retire on pensions upon reaching the retirement age prescribed by the CSL. Early retirement may be granted by the Judicial Appointments Council on the grounds of illness or infirmity.

Section I: Subject to the provisions of this Constitution, the organisation, powers, structure, jurisdiction, privileges, and procedures of the various Courts shall continue as heretofore, until altered or amended by the CSL.

Section J: The Advocate General shall be appointed by the Council of Ministers, after consultation with the Judicial Appointments Council, for twice renewable five-year terms. The organisation of the Judicial Office, and procedures for the appointment of Attorneys General, shall be determined by the CSL.

Section K: The right of pardon, and of remitting punishments, shall be vested in the President, and exercisable upon the advice of the Minister of Justice, given after he or she has considered the recommendations of an independent Pardons Board to be established according to the CSL.

Article IX – Regional and Municipal Government

Section A: Each District and Municipality may develop their own Citizens Charters and other governing documents, in accordance with this Constitution and the CSL.

Section B: For the purposes of local government and administration, Scotland shall be divided by the CSL into Regions and Municipalities. The borders and composition shall be adaptable through due process and local referenda, according to the CSL.

Section C: All citizens and legal residents of each region or municipality shall elect the Mayor, Vice-Mayor or other offices created by their citizens charters to preside over the Council and to represent the Council in its external affairs.

Section D: District and Municipal Councils shall have such legislative, administrative and fiscal competences devolved to them in accordance with the principle of subsidiarity, the scope and domains of which shall be determined by their Citizens Charters in harmony with this constitution and the CSL.

Section E: Regions and Municipalities may be further sub-divided into Communities and Burghs, each with its own Community or Burgh Council. The boundaries, powers and organisation of the Community and Burgh Councils shall be determined, by District and Citizens referenda, in accordance with the CSL.

Article X – Ombudsmans

Section A: Ombudsmans Bureau
§ 1. The Ombudsman’s Bureau shall protect and defend the rights and freedoms recognized by this Constitution, and shall exclusively oversee:
a. The management of the civil service of the Scottish State, and the activity of public or private organizations, be they associated or dependent.
b. The activity of private companies which manage public services, or perform activities in the general or universal interest, or equivalent activities in an agreed or indirect manner.
c. The activity of persons who have a contractual bond with the administration of the Scottish State or the dependent public agencies.
d. All other activities and functions determined by the CSL.
§ 2. The Ombudsman’s Bureau shall supervise the activity of local administrations, and public or private organizations be they associated or dependent, in a subsidiary manner in relation to local auditors.
§ 3. The Ombudsman’s Bureau can request reports from various institutions over how to improve the application of fundamental Constitutional rights, and submit modifications or additions to the CSL to the Parliament for consideration.

Section B: Court of Financial Auditors
§ 1. The Court of Financial Auditors externally audits accounts, financial management and administrative efficiency of:
a. The local and national governing bodies of the Scottish State and the rest of the public sector of Scotland, as well as public or private organizations be they associated or dependent.
b. Public resources used by private companies that manage public services, or perform activities in the general or universal interest, or similar activities in an agreed or indirect manner.
c. Public resources used by persons under contract with the administration of the State and by dependent public agencies.
d. All other financial resources and agencies determined by the CSL.
§ 2. Specifically, the Court of Financial Auditors shall effectively monitor the administration’s transparency to eliminate fraud and corruption.
§ 3. All persons and agencies listed in paragraph 1 of this Article shall submit their accounts to the Court of Financial Auditors under the terms established by law.

Section C: Environmental Audit Board
§ 1. The Environmental Audit Board serves to protect the right to common property and the environment for current and future citizens, and to this end shall:
a. Oversee the proper implementation of all public and private activities.
b. Guarantee the citizens’ right to receive permanent, continuous, correct, and proven information over the condition of the natural common property, the natural environment, the impact of planned actions and their implementation.
c. Ensure that all projects, if appropriate, have the mandatory and proper report evaluating its ecological impact.
d. All other functions as determined by law.
§ 2. On request of the Council of Ministers or the Parliament, the Environmental Audit Board shall report on the environmental impact of modifications or additions to the CSL submitted to the Parliament for debate and adoption.

Section D: Electoral Audit Board
§ 1. The Electoral Audit Board is the authority in charge of the electoral processes, and shall have the following missions:
a. Prepare, monitor, update, and publish the electoral roll.
b. Call, organize, and supervise all elections, referenda, consultations, as specified by the CSL.
c. Define the composition and roles of electoral boards.
d. Oversee the vote count and announce the results.
e. Maintain the strict neutrality, transparency, and proven accuracy of the processes.
f. Facilitate the broadest possible political participation through the most advanced technology currently available.
g. Promote and oversee the procedure for constitutional reform.
h. All other functions determined by this Constitution and the law.
§ 2. The Electoral Audit Board hears the claims and appeals in electoral issues, under the terms determined by the CSL, with the authority to overturn electoral results if the infractions are sufficiently grave.

Section E: Broadcasting and Media Audit Board (BMAB)
§ 1. The BMAB is the authority in charge of guaranteeing the accuracy, veracity, decency, and honesty journalistic practice for those media outlets seeking accreditation in Scotland.
§ 2. The BMAB shall have the competence to develop specific media and journalistic standards, included but not limited to the following:
a. Proven accuracy of information presented, always with the opportunity and legal obligation to correct or retract after the fact when information is clarified or shown to be demonstrably false.
b. Respect for all people’s privacy and human rights, with the right of the BMAB to take the conduct of the entire media corporation into consideration when evaluating the eligibility for accreditation.
c. Use of deceptive editing and manipulation to convey false impressions shall be taken into consideration.
d. Character assassination and ad hominem attacks on anyone, or any other violations of privacy and human rights.
§ 3. All media organizations operating in Scotland receiving accreditation:
a. Shall have access to media accreditation for all local and national governments in Scotland for all their journalists.
b. Along with all citizens, legal residents, and accredited research groups, uniquely have access to Freedom of Information requests from the Scottish Governments.
c. Shall be eligible for grants from the Citizens Media Fund, created to replace the licence fee of the former UK State Broadcaster.
§ 4. All effective legal tools shall be employed to ensure the demonstrable impartiality of the BMAB.

Section F: Composition and functions of the auditors
§ 1. Each audit office consists of five auditors. They shall be elected for five year terms, renewable once, through universal, free, equal, direct, provably valid, and secret suffrage. Single-name constituencies shall be used to ensure adequate representation throughout Scotland.
§ 2. The Electoral Law domain of the CSL shall establish the candidacy requirements to elect independent, responsible, impartial, wise and professional auditors with proven relevant expertise, as appropriate to each auditors body. The Electoral Audit Board shall validate the candidates according to the CSL.
§ 3. The auditors shall operate with impartiality and independence, are inviolable for the opinions expressed in the discharge of their duties, and can only be removed from office through recall elections for the reasons established by law.
§ 4. The law shall regulate the legal status of the members of the Electoral Audit Board, their eligibility requirements, reasons for dismissal, and the powers attributed to them. Auditors cannot be members of political parties, and cannot engage in any other public or private professional activity, except those expressly determined by the CSL.
§ 5. Each auditors body shall enjoy regulatory, organizational, and functional autonomy, with a budget sufficient to effectively carry out their functions, according to the CSL.
§ 6. Each auditor body shall prepare their own budget, which shall be submitted for the approval by the Parliament, and shall be held accountable.
§ 7. Public administrations and the agencies and persons shall fully cooperate with auditors. The sanctions and the mechanisms to enforce compliance shall be established by the CSL.
§ 8. Each auditor body shall provide the Parliament with an annual report of its activities, and held accountable. These reports may include suggestions to modify the CSL to improve the quality of their work.
§ 9. In the discharge of their duties, and to ensure compliance with their objectives, auditors have the authority to impose sanctions, under terms established by the CSL.

Section G: Board of Auditors
§ 1. The Board of Auditors coordinates the auditors and is composed by a representative from each auditors body and a representative from local auditors.
§ 2. The Board of Auditors shall:
a. Coordinate the proper functioning of the auditors body and their employees.
b. Elect and appoint members of regulatory agencies, on a proposal of the relevant auditors body.
c. Organize the shared services of the auditors bodies.
d. Summon local auditors to discuss issues relating to their jurisdiction.
e. Perform any function similar to those enumerated above, as expressly determined by law.
§ 3. The Board of Auditors meets on request of any of its members, and is chaired by an auditor elected for each session. The decisions of the Board of Auditors are taken by a majority vote of its members. In case of a tie, the auditor chairing the meeting shall cast the deciding vote.
§ 4. All public servants and workers have the duty to appear before the Board of Auditors upon a valid summons. The request must be strictly related to the auditor’s functions, and shall never respond to political complaints.
Section H: There shall be numerous mechanisms for creating independent, non-partisan, commissions to focus on specific questions.

Article XI – Defence, Peace and Conflict Resolution and Foreign Relations

Section A: The Scottish State, through the Scottish Department of Peace and Conflict Resolution, shall be devoted to promoting internal and international peace and security, maintaining just and honourable relations between nations and peoples, fostering respect for international law and treaty obligations, and encouraging the settlement of international disputes through arbitration

Section B: Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially through the means of aggressive military actions, shall be unconstitutional.

Section C: Collective Security: The Scottish State may enter into formal collective security organisations but will only do so with the consent of the Council of Ministers and with a two-thirds majority endorsement of the Scottish Parliament.

Section D: Military Activity. Any deployment of Scottish Defence Forces, even if that deployment is to number just one single official, can only proceed after:
§ 1. a formal and public deployment decision by the Council of Ministers;
§ 2. a formal endorsement of that decision by the Scottish Parliament;
§ 3. a UN Security Council Resolution validating the deployment to which Scottish Defence Forces are to be committed.
§ 4. The requirements stipulated extend not just to Scottish Defence Force personnel but also to any Officers of the Scottish State (including police and prison officers) who might be sent to participate in training, assistance or development programmes in overseas conflict or post-conflict settings.

Section E: In the event of a failure to secure deployment assent from both the Scottish Parliament and the UN, it will be deemed unconstitutional for the Scottish Government to aid in any way the proscribed military or security activity in question. This ‘aid’ includes:
§ 1. providing financial contributions – direct or indirect – which might work to support the activity in question
§ 2. any donation or sale of material which might be seen to facilitate or aid the activity in question.
§ 3. allowing the use of Scottish land, coastal waters or airspace for any activities which may be connected with the activity in question.

Section F: Nuclear Weapons:
§ 1: The stationing of nuclear weapons in Scotland’s land and waters is prohibited. An exception shall be made for 2 years from the date when this constitution takes effect during which time nuclear weapons may be stored in Scotland prior to their removal. During this period all activity supporting the operational deployment of these weapons shall be prohibited.
§ 2. The Scottish State prohibits any of the following acts or activities relating to nuclear weaponry taking place on its soil, territorial waters or airspace:
a. The development, manufacture, possession or control of nuclear weapons;
b. The stationing or transportation of nuclear weapons by any means;
c. The testing or use of nuclear weapons;
d. The dumping or disposal of nuclear weapons grade radioactive material or nuclear waste.
§ 3: Transportation through the territory of Scotland of nuclear weapons, parts or components thereof, as well as of nuclear waste or any other nuclear material designed or produced for weapons purposes shall be prohibited and will be deemed a criminal offense.

Article XII – The Corpus of Scottish Treaties, Charters, and International Agreements

Section A. The Corpus of Scottish Treaties, Charters, and International Agreements shall include all the international agreements which Scotland has adopted.

Section B. The Corpus of Scottish Law shall be consistent with the treaties, charters, and international agreements which have been adopted.

Section C. Any clause of any treaty which is contrary to this Constitution shall not be applied, with such clauses annotated with valid justification.

Section D. Mechanisms for adoption of treaties and charters shall be specified in the CSL, which shall include:
1. Mechanisms to implement international standards on the CSL.
2. Mechanisms to withdraw from treaties

Article XIII – Land and territorial waters, and the environment

Section A: The territory of Scotland comprises all the mainland and islands of Scotland, plus the territorial waters in place prior to 1999, as recognised by international law.

Section B: The totality of the territory, buildings, and other goods within its land and territorial waters requiring legal title in Scotland shall be registered and taxed exclusively with the Scottish government. Complete transparency on ownership is required for the bearer to register and maintain title. Land and goods for which legal title cannot be legitimately established according to the CSL shall revert to public ownership.

Section C: All use of eminent domain in the acquisition of land and property must be transparent and demonstrably in the public interest, conducted exclusively by public agencies of the Scottish government, with fair and timely compensation for expropriated property.

Section D: The powers of the Scottish land management agency shall include, but not be limited to, maintaining the title registry of land, assuring that EU and other subsidies are directed towards the valid recipients, and rigidly enforcing regulation based on peer reviewed science. Sufficient resources shall be furnished by the Scottish government to enforce these and other measures, and the CSL shall provide for the shielding of regulators from the influence of the entities they regulate.

Section E: Environmental Law
§ A: All environmental law shall be applied to the totality of the land and territorial waters in Scotland, including transport.
§ B: All persons, individually and collectively, have the right to the protection of the common natural resources of Scotland. These include natural systems created by the interaction of solar energy with air, water, soil, and subsoil.
§ C: All persons have the duty make responsible use of common natural resources, from an ecological, economic, and social perspective. The productive sectors are legally bound to use common natural resources in a way that does not degrade the environment or hinder regeneration.
§ D: All chemicals, devices, and techniques used in all industry and energy extraction shall be declared and regulated. Chemicals deemed too toxic to be used through exclusively peer-reviewed scientific methods shall be banned. All ingredients in all foods and drinks, including all those which are genetically modified, shall be clearly labelled on the package. Under all circumstances, the burden of proof shall fall on the industries to prove their products and techniques are safe, rather than on the state to prove their harm.

Article XIV – Financial Regulation

Section A: All banks operating in Scotland must separate their investment and commercial operations, and/or continuously prove that that there are sufficient reserves to guarantee consumer deposits in their commercial operations in Scotland.

Section B: The Scottish government shall have the authority to set the leverage ratio for investments and financial products which bind all financial institutions operating in Scotland. The repayment of any loan or credit in excess of 15% annual percentage rate interest shall not be compelled. Provisions shall be made by the CSL to assure that the interests of consumers are represented and respected in the financial regulation process.

Section C: Upon this constitution coming into effect, the Scottish government shall establish a sovereign wealth fund for all revenue from its natural resources within its territorial waters. All revenue from natural resources and energy production shall be publicly held and invested in the public sector.

Article XV –Public Services and Privatisation

Section A: All natural infrastructure monopolies, including but not limited to the electrical grid, water and wastewater infrastructure, gas and oil pipelines, and the railroad infrastructure shall be permanently publicly owned and maintained through public funds. There shall be a Scottish state-owned company operating in all natural monopolies, and the Scottish state shall regulate all sectors to ensure carefully managed and demonstrably fair competition.

Section B: All public services and institutions, including but not limited to refuse collection, police, prisons, schools, welfare, electoral boards, land and property assessors, and any other institutions established to exclusively serve the public interest, shall be publicly owned; operated, and regulated by the Scottish Government. Any private contracting for assisting the provision of services can be tendered, while facilitating companies of any size to participate in the bidding process.

Section C: The awarding of all government contracts on all levels shall be conducted through a transparent competitive bidding process, with legitimate reasons for determining the grantee made available for scrutiny to the public and the financial auditor before funds can be appropriated. All state contracts shall be published and transparent. Under no circumstances shall the denial, cancellation, or alteration of a pubic contract be legal grounds to sue the Scottish State.

Article XVI – Oath of office

The President, Ministers, Members of Parliament, Judges, and all other persons holding public office under this Constitution, shall take the following oath, with or without religious invocation.
I …………………………. solemnly affirm that I will bear true faith and allegiance to the people of Scotland, and that I will faithfully and conscientiously perform my duties as [name or title of the office] in accordance with the Constitution and the CSL of Scotland, without fear or favour.

Article XVII – The Constituent Process for the Scottish State

Section A : Initiation of the constituent process
§ 1. The Scottish Electoral Audit Board shall be established, in conformity with the rights guaranteed in this provisional constitution.
§ 2. The Electoral Audit Board shall call a referendum, and the following question shall be asked of all citizens and legal residents in Scotland: “Based on the Right of peoples’ to democratic and peaceful self-determination guaranteed under the United Nations Charters, do you choose dissolve the 1707 Treaty of Union and enact the Constituent Process for the Scottish State ?” Yes / No
§ 3. A ‘Yes’ vote by simple majority shall initiate the Constituent Process for the Scottish State.

Section B : Refinement of this Draft Constitution and the Corpus of Scottish Law
§ 1. The Constitutional Commission shall be established to coordinate the refinement and oversee the technical drafting of this Constitution and the Corpus of Scottish Law.
§ 2. The Constitutional Commission and all other commissions shall be staffed exclusively by competent, humane people of good will from a variety of relevant backgrounds and professions.
§ 3. Pending final ratification of this Constitution, EU, UK, and Scottish law prevailing before enactment shall continue to apply during the constituent process in all spheres.
§ 4. Commissions shall be established in each sphere of the law, and shall transform, simplify, and modernize the CSL to make it fairer, more equitable, humane, and accessible. It addition, they may suggest changes to the constitution which could better integrate and clarify the constitution and the law, which shall be considered by the Constitutional Commission before final ratification.
§ 5. These commissions shall rewrite the legal code in their respective sphere, after which the text shall undergo a technical correction process by the Constitutional Commission to assure conformity with this Constitution CSL and the linguistic standards in (III, A, 2) before incorporation in the operational
Constitutional and Legal Framework for the Scottish State.

Section C : Ratification of this Constitution and the Corpus of Scottish Law.
§ 1. Within 18 months of voting to enact the Constituent process for the Scottish State, once the draft Constitution and Corpus of Scottish Law has been finalized, it shall be put to the totality of the Scottish electorate for ratification, a ‘yes’ vote thus definitively establishing the Scottish State.
§ 2: Once ratified, this Article XX shall be removed from the constitution, as it will have served its function and will no longer be required.


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91 comments on “A draft constitution for the Scottish state

  1. […] Wee Ginger Dug A draft constitution for the Scottish state The constitutional scholar Dr. Mark McNaught, who is a Professor of Law, Philosophy, […]

    • Katherine Perlo says:

      I am very unhappy about the inclusion of support for abortion and euthanasia in Art. II.B.3. I realize that this is ‘as prescribed by the CSL’, but to present these measures as constitutional principles, when they are in fact political policies still subject to controversy, is to give them official sanction, assigning opponents the status of contrarian, second-class citizens. Combining this with the exemption from freedom of speech (II.B.1) of ‘demonstrably injurious discourse’, you leave the door open to the criminalization of opponents of abortion in particular, given the hints of such prospective criminalization on grounds of ‘misogyny’.

      I would hate to feel that, in continuing to campaign for independence, I was also campaigning for measures that are anathema to me — and, in the case of euthanasia, for a measure that threatens my very life, as I am part of the ‘problem of the ageing population’. The term ‘voluntary’ is disingenuous, given the social pressure, withdrawal of treatment, and other measures available to secure compliance.

      • kerryelaine100 says:

        It would only be relavent if you, yourself , asked for it !!! I think it’s a great thing xx

      • Dave Simpson says:

        I think that issues like these, along with the head of State, and future relations with the EU should be dealt with democratically, preferably by multi question referendum, post independence. Independence has to be the priority, with other policy decisions taken afterwards by the Scottish electorate. Proposing policies in advance risks antagonising every group that doesn’t like one policy or another to the point where indy gets voted down.

    • Martin Edmunds says:

      With regards to the head of state:

      In a constitution which rightly states ‘no aristocratic or ‘noble’ titles or names shall be conferred OR RECOGNIZED by the Scottish state for ANY purposes, how can Elizabeth Windsor or her successors in any sense be recognised as or invested with the position of head of state?

      The whole basis of a new Scottish state is that it will be a meritocracy and run as a modern democracy … To appoint a person as head of state based on an accident of birth with no democratic mandate and especially one loaded with ‘noble titles’ and who lives in what will be a foreign country is not only an anathema to the aims stated above but in my opinion contrary to the whole concept of trying to create a modern democratic state.

  2. Bill Cowan says:

    Decorating the hoose in extreme detail before we own it. – Not helpful.

    • Tol says:

      Bill

      I agree. It may be more productive to start with a discussion about what elements are in a Scottish constitution and what those mean to a sovereign Scottish people before jumping to the end.

      To me, all main rights (and responsibilities) must stem from the people’s sovereignty. Hence the constitution starts there.

      1 – Sovereignty

      2 – Governance
      …….- Voting (the sovereign act)
      …….- Parliament
      …….- Head of State
      3 – Law
      4 – Environment
      …….- Earth, Sea, Sky,
      …….- Ecosystems
      5 – Languages and regalia
      6 – Constitutional Amendments

      ___________________________________________________________
      Scotland must avoid creating new democratic deficits (i.e. why would you embed the failures Scotland now has with England in a new Scotland). Hence, fundamental to any constitutional creation would be Scotland having a serious discussion about itself and how it wishes to be equitably organised.

      Do the regions of Scotland become recognised constitutionally?
      (Orkney/Shetland, Western Islands, Highlands, East, Mid, 4 x Central Belt, South)

      Is a parliamentary upper house the regional house ?
      (Regions given equal representation)

      Are the Environment and Rivers given constitutional status?

  3. Far too much rubbish, keep it simple, it’s a gold mine for lawyers.

    • I agree.

      A constitution needs detail in some areas (eg roles & responsibilities of different arms of govt).

      It should also express fundamental truths about human societies. Being fundamental principles, these aren’t specific to any particular issue and hence should be expressed in general language.

      They also have to endure over time. For example, 300 years in the future we don’t now what languages we’ll be speaking. We shouldn’t name any in the constitution. Maybe elements of gaellic, scots & english will merge into a single, new language in Scotland.

      There are two hugely important things I’d want to see in a Scottish constitution.

      One is a clear statement which imposes a duty on government “to create the most good for the most people” (with appropriate qualification re tyranny of the majority). This is hugely important to avoid the inevitable attempts to establish an elite class who help themselves to a large share of the nation’s wealth which they have not earned and do not deserve. Governments must serve, not rule. (Maybe that should be expressly stated too).

      The other (closely related) item is a simple clause which says “all rules must apply equally to all”. This would also need a qualifier: “unless otherwise specified in amendments to this clause.” There are exceptions. For example, prisoners do not have the same right to liberty as others.

      Amendments allow a constitution to grow and develop according to need. No-one knows what the future will be – except that it will be different to what we know today.

      And since it’s remembrance day, how about this: “any First Minister of Scotland who leads the country into armed conflict shall undergo a formal trial on cessation of hostilities in order to pass judgement on the reasons given for taking up arms and also on the conduct of government in pursuance of the conflict”.

      Churchill*, Eden, Blair: they’d all have gone to jail.

      *Bengal famine, post-war Kenya

      • Tol says:

        @noeldarlow

        So many interesting discussion points in that post.

        LANGUAGES
        Official languages are to control the government and ensure a shared language between government and populace. The name of a language does not limit its vocab or syntax which is living part of languages.

        FIRST PRINCIPLES
        I would be scared of incorporating the moral frame “the greatest good for the greatest number of people”. The literature acknowledges it as highly flawed. When you play that system out, you only entrench a permanent underclass. I understand what you are after but this in not the expression.

        EQUALITY
        Always be wary of exclusions. It is a slippery slope – where to remove rights all any power has to do is define people in that “class”.
        Remember, if there is rule and an exclusion clause, people always find a way to exploit if for their own ends.

        ARMED FORCES
        You are thinking of the military and war in the UK/ USA frame…then trying to use law to reign it in. Why not start at a different point. Does Scotland need a “military” or does it need a self-defence force?. If it is a self-defence force, then the constitution can automatically limit those who control it.

        • It’s a question as old as our species: we’ve got all this stuff how will we share it out fairly?

          A feudal/plutocratic model doesn’t even bother to try but human societies just don’t work properly like that (see The Spirit Level). Co-operation is our superpower. Everything which we have achieved has been achieved by working together – but why contribute to the group if the group won’t also deliver for the individual?

          That’s where “all rules must apply equally to all” comes from. It’s literally written into our DNA as a social animal.

          Anyway, there are two potential problems with whatever wealth-sharing culture a society might choose to create: allowing a self-styled elite segment of society to take too much wealth and creating an underclass which never get a fair chance to share in the wealth which their society creates.

          There has to be some form of words to make it difficult for a serving government to enact policies which encourage either of these things. An equality statement warns against the creation of an underclass; “most good for most people” warns against a rentier class.

  4. Leslie Paddick says:

    It’s interesting but lots of lawyers will get extremely rich for years I think. One clause in this new constitution should read that no parliament or Government can propose or enact an act of union with the united kingdom

    • Liz g says:

      Well Lesley that’s ma personal hobby horse.
      And while at THIS point in time I’m happy to be in the EU & The UN, I’m not comfortable with including those bodies in our own Constutition.
      We have no had a very good history with Unions…
      My proposal would be…
      Holyrood has the right to sign Scotland in to Unions that it considers it is in the Scottish interest to be part of.
      But ALL Unions must have a Sunset clause of 25 years.
      Never again can Scottish Politicians sign us up to a Union for 300 odd years.
      We don’t know what future generations will want and we can’t bind them, but we must protect Scotland’s independence.
      Therefore any and all Unions must after 25yrs be put before the Scottish People to confirm that they wish to remain in them…. if any government fails to hold such a vote, the Union in question ends by default…

  5. deelsdugs says:

    Ban fireworks. Get rid of QANGO’s. Reduce the manipulation of ad’s through the tv and sm network. Remediate the ‘disposable everything’ society. Allow for personal request internment. Reduce the ‘jobs for life and I’m only into for my pension council’ ethos. Ban large shooting estates and their multi million pound annual harvest of death. No guns. Except police/military. No crass ‘vermin control’ by guns on farming land. Farmers to reduce their chemicals. No farming to the edge of water courses. No residential or business building on riparian corridors. No tourism facilities turned into residential dwellings. Reconstruct farming fields to smaller area to encompass wildlife and biodiversity. Local councils to work with local people. I’m sure there will be further things to add…

    • grizebard says:

      This response seems to me to be the fundamental problem with this proposed constitution turned up to 11.

      It is <b<not the proper role of a constitution to enact any political policies or procedures whatever. That is the proper function of an elected government, which is then capable of adjustment as circumstances and opinions change in future ways we cannot predict.

      The proper role of a constitution is to specify fundamental citizen rights and specify measures by which they can be defended against any attempted violations by government or others, and conversely to also specify citizen responsibilities.

      Done properly, this does not require a legalistic minefield of clauses, sub-clauses and sub-sub-clauses specifying this-that-and-the-other in nit-picking detail, but instead is a basic document (hence in German: grundgesetz. One important advantage thus accruing is that its principles and measures can be readily understood by all.

  6. David Sillars says:

    I appreciate the rights outlined in the document and we do need proposals to sell during the independence campaign. Still sounds like a top down government centralized in Edinburgh. We need to distribute the offices of government across the whole country. The community councils should form a tier of government with executive oversight. We should not replicate Westminster in Edinburgh.

  7. Waltz says:

    Looks like a good first pass at a written constitution, something we are sorely lacking at present, The comments so far are not too encouraging that we will ever get agreement on the content but it’s early days I suppose.

  8. Ian MacDonald says:

    More than anything Scotland needs a constitution.

    I’ve worked on loads of constitutions. The only bit that ever matters is the aims and objectives. The raison d’être, The principles that speak for who we are.

    Once we’ve staked our moral ground, all else is just legal posturing (best in appendices/byelaws).

    One sheet of A4. No more. Two weeks.

    Let’s do it.

    • Exactly, Ian.
      I had to wait until the second last paragraph to figure out when Indyref2 is scheduled.

      “Within 18 months of voting to enact the Constituent process for the Scottish State, once the draft Constitution and Corpus of Scottish Law has been finalized, it shall be put to the totality of the Scottish electorate for ratification, a ‘yes’ vote thus definitively establishing the Scottish State.”
      I’ve waded through this weighty tome.
      It would take five years to establish such fine detail: lots of lawyers and professional politicians coining it in.

      Indyref 2 must happen in the overarching period between now and Engwaland leaving the EU, which if there is no deal, could be as urgent as 29th March 2019.
      There is no time for navel gazing.
      In five moths time Scotland will become a ‘vassal state’, a militarily occupied colony of England.
      A Lord High Commissioner?
      We pay Lizzie to rule over us?
      Nuclear weapons still on Scottish soil two years after the five years it would take to establish this version of a Scottish Constitution.
      One side of an A4 is all that is required until we vote:
      ‘Should Scotland be an independent country?’ Yes/No.
      I welcome and thank the team for setting the debate in motion.
      But..
      We go, and we go now.

  9. Waltz says:

    FFS. I despair. All in good time. Someone has made a stab at compiling a written constitution, which seems reasonable, and all everyone can do is pick holes in it.
    I have no connection to the author, I have no idea who he is, but can we not just leave it as it stands until it is required. Which is likely to be some time away unless we can accept that we have a lot of negotiation to complete before then. We can finalise the finer points when it is needed.

    • Liz g says:

      Actually we need to get this up and running now..
      And for two reasons.
      Firstly …Thanks to American TV most people in Scotland know and understand what a Constitution is and that its a good thing.So being able to talk during the Indy campaign about ours ,will be an advantage.This is something that Scots haven’t had before and will when asked probably want!

      Secondly…We, the people of Scotland need to be involved in writing our Constitution,otherwise, “so called” civic Scotland will swoop in and write one for us and that will really be a mini me Westminster effort.If it is to work for us we all need to be involved!
      We need to work out what we want in advance to have any chance of having any input at all.

      And apologies in advance to the author, if I am sounding negative, I really am trying to be constructive and taking Paul at his word in that we are being invited to say what our own take on it is!!
      But only with a view to putting ideas out there and not to insult.
      Because…..fair warning….I have loads more to say…!

      • Not the best recommendation. It was written after their independence. Their constitution could do to be amended to suit modern times. Most countries don’t have a constitution. The only constitution Scotland needs is one to have a referendum on important decisions.

    • Jan Cowan says:

      I agree with you, Waltz. Great idea followed by all that effort and greeted by nothing but criticism…… Time, I’d say, to encourage excellent work.

  10. Jim McKie says:

    ‘American civilisation’ is an oxymoron.

  11. Colin m says:

    A bit long winded but sensible and thought out. as for some of the comments it’s typical of the Scots. As stated, it’s a discussion piece, so discuss it or away back in your cave.

  12. Patience is a Virtue says:

    A good starter for 10. had a quick browse through, stand out one being ‘The territory of Scotland comprises all the mainland and islands of Scotland, plus the territorial waters in place prior to 1999, as recognised by international law’

    We are in current mess with EU as we had a ‘consultative’ Referdum – but not much heed being paid to it being only ‘Consultative’ – being treated/hijacked by a certain political Party as a ‘binding’ one (defition here appears that Referenda = binding -so would need clarification / better definition).

    The topic of Land /Ownership /Environment (the latter being crucial in next 50 years) not touched on much – would have thought wanted something where each person has a collective responsibility (and ownership) of all the Land and territotial waters and resources for its best use.

    Edinburgh the Capital? – sure if it votes in majority for its own Independence – there are other more worthy and historic candidates. It would be good e.g to have a Scots Pound Sterling issued in Stirling!

    If you are going to elect a President -what role does the monarch / monarchy play? -are we Citizens or Subjects ?… though i see no reason why e.g. if independence was actually achieved in 2014 why a ‘Scottish’ monarch could not contune ..[I am sure there were such ‘ plans’ in place -at least within the Royal Family.for such an eventuality- though with emphasis on ‘each person has a collective responsibility (and ownership) for all the Land and territotial waters and resources and its best use.’ above i.e. the Land should be owned by the People unless of course is considered ok to have /continue with more than 95% land ownership being from outside of your own ‘territory of Scotland comprising all the mainland and islands of Scotland, plus the territorial waters in place prior to 1999,’
    ..
    I can think of a few Presidents who may not be your ‘ideal’ (of a President)…Monarchy/Presidency. not of primary importance….Independence first…. it really is now a case of what kind of Country do you want to live in.

    A lot of use of the word ‘shall’ (as opposed to will/must)… one for the Scots Lawyers

    Once have had a ‘good look’ will get back with a few more comments am sure.

    • Martin Edmunds says:

      Edinburgh is a no brainer as Scotland’s capital … the cosmopolitan make up of the city is a perfect reflection of the outward looking society we would want to encourage and project to the world.
      The fact that it voted no in the 2014 referendum, in no small part as a result of that cosmopolitan make up ( eg, the thousands of EU nationals who live there falling for NO campaign scare stories ) and that it may do so in a future referendum is as weak an argument against its future status as Scotland’s capital city as anyone could ever think of …. In fact your comment sounds like ‘lets punish Edinburgh’ to me.
      I would be interested to see your list of “more worthy and historic candidates” …. as historic ( definitely ) as worthy ( possibly ) ….. but ‘more’? … ah deh think sae.

      The city already has a purpose built parliament building …. would we want to start off a fledgling country by committing further millions to creating a new parliament building in Stirling or Arbroath?

      It also has an ever growing international airport … I can just see the joy on the faces of visiting international dignitaries as they step off the plane and then have to catch the bus to one of the two towns mentioned above.

      I would presume the new independent Scotland will have to prepare itself for an influx of embassies and consulates from around the world … how many towns in Scotland have the capacity or infrastructure to cope with such an influx …. certainly not Stirling or Arbroath.

      Image projection is another factor … Edinburgh is one of the world’s most beautiful cities and its appearance on a national stage as the home of Scottish government would be a real positive for our country.
      It always amuses me that our nightly national news is broadcast with the backdrop of a huge disused crane and a river which never ever has so much as even a rowing boat on it, when 40 miles along the road we have one of the worlds most beautiful and iconic city backdrops.
      If your preferred option is Glasgow it falls down in just about every area compared to Edinburgh, it certainly does not surpass Edinburgh’s historical importance in any way prior to the advent of the tobacco industry. It is far less pleasing on the eye than Edinburgh and in 40 years time Edinburgh will even have surpassed it as Scotland’s biggest city, if projected figures are accurate.

      As you will have guessed by now I was born in Edinburgh … Perhaps if we were to look at a new Capital we could do worse than Dundee, already a city looking to regenerate itself and if we were to chuck squillions of quid at a new capital one further north than Edinburgh or Glasgow but still able to establish good future transport links to Europe and Scotland’s biggest cities would be ideal …. not to mention the fact that it would remove the Edinburgh v Glasgow debate from the equation … perhaps for that reason alone it would be worth spending the money and if how places voted or will vote is part of your criteria for a future capital they don’t get any more YES than Dundee.

  13. Geordie says:

    I like that we’re already thinking in terms of our constitution, and in detail too. Never too early to start behaving like an Independent country. It also shows up Brexit for the amateurish, bungling, clueless shitshow that it is. Suggested addition to para 2 of the preamble – include ‘transport’ in the list of provisions. I want to see publicly owned bus and rail services in Indy Scotland.

  14. benmadigan says:

    Appreciate the work Dr. McNaught has done but what Scotland needs is a Constituent Assembly with representatives of people from all walks of life – butcher, baker, lawyer, doctor, tailor, sailor, student,housewife, trade unionist etc.

    They could compare Dr Mc Naught’s draft with what “other groups and individuals who have also been working on similar projects.” have produced and with modern Constitutions from other countries and then frame one that is suitable and unique to Scotland.

    And put it up for discussion.

    • Mark McNaught says:

      During this constitutional development process, all will be able to contribute their ideas. More will be clear later in the week when the scotconstitution.scot is launched.

    • I’m a bit wary of that. It’s hard to argue against everyone having an input but, as the saying goes, a camel is a horse designed by committee.

      To draft a good document which will be our guide for centuries to come, I think what you really need is a few inspired individuals with a deep understanding of what makes human societies – and democracy – succeed or fail.

  15. Liz g says:

    While myself and no one in their right mind would want Scotland to have an armed population.
    I think we would do well to remember why the Americans felt the need to ensure that they had the right to bear arms.

    Our Constitution is mainly to protect us from rogue governments,and sooner or later Scotland will elect a bad government..
    Therefore,we could have something along the lines of…

    Should Holyrood arm more than 10% of the police for longer than 6 months,the citizens of Scotland gain the right to bear arms….
    That should offer protection from an administration moving to generally arm the police?
    As they would never want the population armed!
    We also need to work out if we are going to ever allow the army on our street’s and what the terms and conditions of that would be?
    And we need to find some clever wording here going forward,because, ( mindful of water cannons ect) not all weapons are guns!

    Again, with very limited knowledge of the American Patriot Act,and the powers of the President when there’s a state of war in the US..
    We need to look at.
    A. How the Constitution can be changed.
    B.What checks we can put on Holyrood if it is ever involved in a war.

    The “Intrim” Constitution published in 2014 had suggested a Holyrood Super Majority for Constitutional change….EH,NAW…..if there is to be a change in our Constitution WE get to decide, Ireland have been doing it,and that,it seems to me is the way to go.A super majority in Holyrood to hold a vote on Constitutional change.Then a referendum to actually change it.

    Any “special” powers that Holyrood enjoys during times of war or emergency should be time barred. …but not like in the US when congress/house of representatives can nod them through we must vote.
    EG Holyrood can vote for 6 months emergency measures and then a super majority for a further 6, after that Holyrood must have our consent to continue,and our choice should be a further 6 months or one year or cancel,none of this decades long special measures shit.

    As an aside…..voting day should be a Sunday…

    • Martin Edmunds says:

      Interesting thoughts on guns. Though I could never see a point at where our police are routinely armed its not unusual in many stable democracies like Canada, France and Germany … they don’t see that as a state of affairs which correlates to arming the general population and neither do I ….. ever.

  16. Liz g says:

    Last thought tonight…
    While I think it is a good idea to have the Scottish Government sit all round Scotland.
    I don’t think that it needs to be a Constitutional requirement although I could live with it…. but I do think we should look at forbidding Scotland’s government from sitting Outside of Scotland?

    • Martin Edmunds says:

      Its a thought Liz … but in the admittedly highly unlikely event that Scotland was ever subjugated by say for arguments sake Russia or England : – ) it would be a bit silly to write into the laws of our own country a legal barrier to setting up a government in exile.

  17. Mark McNaught says:

    Keep the comments coming. The contents of some of the comments demonstrate a constitutional illiteracy, which is understandable given that the UK constitution is a feudal anachronism, and no Scot has ever had a constitutional right. We hope to have the wiki version up soon.

  18. Davy says:

    This is the first time I have been able to see and read a possible Scottish Constitution and I would like to thank Dr McNaught for this contribution.

    It give me an insight to what is within Scotland’s future, and as stated it is a discussion document and I am sure changes will be made. I notice some people are complaining about its length, well in this day and age having to cover as many possibility’s as possible is standard throughout industry, and various institutions. And I cannot see how a modern constitution would be any different.

    I hope our constitution has an embodiment of fairness built into its structure, where all our people regardless of what their financial or social position is, have the means provided to them to reach as far as their ability extends.

    Lets put fairness, hope and responsibility into the heart of our constitution, it is the opportunity of a lifetime and will be history in the making.

    Lets contribute not condemn.

  19. Gordie says:

    I believe that Scotland needs a written constitution and there is no reason why we can’t work on one now.
    Well done to everyone involved.

  20. M15 Troll says:

    A lot of work went into this clearly but it got a bit heavy for my simple mind on a Monday morning. The only thing I remember is the “Free beer on a Friday” clause. Now that’s something I could vote for.

  21. Steve Ashton says:

    From a layman’s perspective…. This looks like an excellent “first draft” of something a newly independent country could work with and something I could live within.
    Minor issues will need some clarification, but that is inevitable I guess. From my initial reading I would have to ask if B4 intentionally enshrines polygamy, and if so is that what we want? And at D15, do unpaid fines constitute debt? Does this suggest that court imposed fines can be ignored with impunity? And… Does D17 outlaw Community service order penalties imposed by the courts? I am certain there will be many many other queries raised by brighter minds than mine, but as a starter point I like it and would like to thank the author(s) for the time and effort in compiling it.

  22. Tatu3 says:

    My initial thoughts for what they’re worth!

    Voting day should be a Sunday and it should be compulsory, like in Australia.

    I think if we were to get rid of the monarchy, say after the present queen dies, then an elected President would be a good idea, but only as a non political figurehead. Someone who would be good at dealing with the all the ceremony of dealing with other heads of state. Leaving the actual running of the country to the elected government. Of whatever party.

    I also don’t think it should be quite so complicated. Just makes it easier to abuse. Another idea might be to have a trial constitution for say five to ten years. See how it “fits” and adjust if necessary.

    • Martin Edmunds says:

      Certainly an elected president. It might even be worthwhile writing in a clause that anybody putting themselves forward for that office can ever have been a cabinet minister or prime / first minister, perhaps not even a politician at all in fact.

      For this purely ceremonial role there are many fine and worthy people who were born in this country, or who have made it their home, who would make a fine head of state … perhaps a 30 year residence requirement for those not born here in order to qualify.

      Whatever the case, as I stated in a post above, we simply cannot allow a set of circumstances where we allow a head of state, ceremonial or not, who ascends to the position by virtue of birth or unearned privilege …. that to me would be an anathema to the very principles of the sort of Scotland we would be trying to create.

  23. alasdairB says:

    Good starting point and discussion document.
    (1) The 1320 Declaration of Arbroath should be referenced as original source of our National sovereignty which delivers the individual as sovereign and not the state..This should be stated at the outset, with Holyrood specifically designated as source of all legislative & admistrative matters (6th April 2020 would be a memorable date to aim for)
    (2) My preference would be for inclusion of an upper house (3) Compulsory voting as per Australian model (4) All political parties seeking representation either at Holyrood or local level must be self contained entities duly registered in Scotland and solely funded from within Scotland (5) No Scottish Armed Forces but certainly a Scotland Defence & Border Force (6) Citizens rights to share of natural resources eg oil, gas, water, tidal, wind and solar through a Government Wealth Fund as per Norway model (7) Citizens rights of free education (8) Citizens rights of free cradle to grave National Health Service together with designated social Services delivered by the state.(9) Not sure about designating Church of Scotland as would rather see religion referenced as ‘all faiths & religions treated and respected on an equal non sectarian basis’ (10) Scotland to be nuclear free weapons zone within 10 years

    • Martin Edmunds says:

      I agree with your declaration of Arbroath point. It is a fine historical reference with which to frame any constitution.

  24. Jan Cowan says:

    I wouldn’t know where to start on the composition of our Constitution but I’m thrilled that Dr McNaught is able and willing to put in the work. I thank you.

  25. James Gardner says:

    Ony Constitution is better than Nae Constitution !

  26. Dave Simpson says:

    As others have said, a good first draft. I have the odd niggle, e.g. I would prefer the term “Provost” rather than “Mayor” for the head of local government, but the suggestion of putting the document out in wiki format for all to have a go at it is good in principle. I do have a concern, however, that the “green ink brigade” of SiU and similar trouble makers could sabotage it.

  27. Karen says:

    With regard to the national anthem, I would recommend Theme For The Early Days Of A Better Nation – by Matt Seattle and David Finnie. It is perfect.

    • Heartsupwards says:

      I would like Bob Dylans, “When The Ship Comes In”. Very International and constitutional. Would be nice for it to happen when he would appreciate it too.

      • Liz g says:

        My preferred National Anthem would be
        Auld Lang Syne…
        Mainly because it is so internationally known…
        Very few National Anthems are well known (how many can you name)
        Yet the almost the whole world not only knows it, and can sing it they can also perform the actions.
        The words are friendly no battles or bloody tombs and there is no salutes or hands on hearts… but rather holding hands with the body next to you…..
        Having the line..
        Here’s a haun o mine… just says Scotland, I think!
        Also
        It is sung worldwide at New Years… what’s not to like about that.
        It’s been in movies and been performed as much if not more than GSTQ, so has no catching up to do for it to be recognised.
        It was written by our most famous Bard and written around the start of the Union.. so it could be argued that we gave it to the world to sing and keep it known until we returned Government to Scotland and now we’re taking it back home!

    • Martin Edmunds says:

      Anything apart from bloody Flower of Scotland … its a dirge. I have always liked Scots wha hae, it has a certain steeliness and gravitas which FOS lacks and its a hell of a lot easier to sing. Though I think an adaptation of it rather than the original, removing all references to ‘Proud Edward’ but leaving in the bits about giving tyrants a kicking.

  28. Andy says:

    Not read it all yet, that’s a job for later with a coffee. No doubt there will be nit-pickers: ” you can’t do this”, “we should be doing that”. It’s a start, and we have to ensure that our democracy is not hijacked as has happened to so many revolutions, declarations of independence, and other forms of “taking control”. We only have to look as far as Westminster to realise that taking back control can mean the opposite.

    I was under the impression that the late Professor Sir Neil McCormick had done a lot of preparatory work in this area. He’s just the sort of person we would wish was still around as a calm guiding sensible hand in what will be a fraught time.

  29. Eddie says:

    ” The rights and privileges guaranteed to persons under this Constitution and the CSL hereon extend only to human beings and human collectives; the extent to which such rights and privileges may be extended to corporations and other legally sanctioned entities shall be determined by the CSL.”

    Corporations and other legally sanctioned entities have successfully claimed full individual human right status across the globe. In fact they have a kind of ‘supra’ right’s status, in which their often massive resources allow them to constantly challenge and tie up any legal challenge to that status. This is something your average Joe cannot do, whether that person is a low paid worker in Scotland or Nigeria. Some humans are more equal than others it would seem. Or more specifically, some humans ( Corporations and other legal entities ) are able to claim and defend their rights more successfully than others. It is no coincidence that these ‘ Supra ‘ Humans have monetarised the whole process of being able to claim and defend these rights. It adds to their power and detracts from the individual’s. It describes the economic and political reality of the modern world.

    I think my point would be is that surely we would be better advised to confront this problem from a strictly constitutional perspective. Otherwise we shall just have the status quo thrust upon us. I am not saying I have the answers, nor am I saying it is easy. However, I am saying that unless a solution is found to this problem it will continue unabated, including in a new Independent Scotland.

  30. Andrew Haddow says:

    Nitpicking, but I presume the “Article XX” referenced in the last paragraph is actually Article XVII.

  31. Frank Gillougley says:

    ‘This draft is not intended as the last word on a Scottish constitution, it is intended as a discussion document to help promote discussion and debate about the contents of a written Scottish constitution which is fit for the 21st century.’

    The problem is, I suspect that this crucial prefacing qualifying statement will get lost in criticism and comment of this draft and it will inevitably be read as a detailed document. However, as a draft constitution, scanning this work, I think that many will find that this form is useful more primarily as a scoping document, that specifies the structures of every area of organisation of life that will have to be discussed and decided upon in the process of forming a new independent country. In this respect, this document, at least as an aide memoire, is very useful in putting flesh on the bones, providing a real picture of the realities of democratic government of a people. Otherwise, if it were not so detailed, some statements would inevitably be so vague as to render them almost meaningless.

    However, notwithstanding the qualifying contextual quote above, I do suspect that there is an element here of the cart being put well before the horse. For me, The initial question to be addressed is, how, or by what process, are we going to democratically arrive at a written constitution for a new nation. That is perhaps the first issue to be decided rather than being perhaps unwittingly presented a fait accompli with a draft detailed document that has been prepared understandably by someone well-versed in international constitutional law. I would have expected that such a draft should have maybe have been the product of a representative working committee comprised of professionals and lay people alike.

    I am only asking that the process is as important as any end result. It has to come from the bottom up rather than from the top down and done in such a way that the lay person can be both informed and inform. It has to be broken down and produced in understandable chunks, covering the areas of governance.

    People have commented here as such, alluding perhaps to previous historical ‘proclamations’ on an A4 and I suppose they would then like to see this process being expanded to longer documents. Otherwise, at day one, the citizens of this new republic would be alienated from government. This is not what is intended I am sure.

    Incidentally, on the length of this document at c.9,000 words, it favours comparably well, for example with the Irish Constitution (Bunreacht Na h Eireann) of 1937 of c.15,000 words. The Constitution of the transitional Irish Free State of 1922 began as a 10,000 word document. This also gives an idea of the years involved in arriving at a written constitution considering that the Irish process of achieving independence effectively began 6 years earlier. It would be useful to cite other nations’ examples of time frames.

    I do believe that presentation of the process of arriving at a content is everything, if you are to carry a people with you. ‘How’ are we going to do things, is every bit as important if not more so than ‘what’ we are going to do.

    There should be a framework where this process by which a constitution is arrived at should at least be spelled out in simple terms. This task undoubtedly requires an experienced political input.

    Lastly, on a lighter note, in the knowledge that all bureaucracies are self-serving and self-referencing, I was amused by the following apparent ‘contradiction’ in the text by the use of the word ‘unicameral’. Of course, I looked it up and it means quite simply, a single chamber. Which begs the question, could they no just huv said that?

    Article III – The Corpus of Scottish Law

    Section A: Purpose of the Corpus of Scottish Law

    § 2: The CSL shall be written in the clearest, most understandable language, syntax, punctuation, and wording possible, employing the simplest most broadly understood words available, that all citizens and legal residents clearly understand the law, preventing its misapplication and exploitation, seeking to universally assure equality of access to and treatment under the law.

    Article VI– Parliament

    Section A: Ultimate authority to amend and/or expand the Corpus of Scottish Law shall be invested in a unicameral Scottish Parliament.

    Sorry for going on a bit.

    • I have a sense from you language and turn of phrase, Frank, that you have dabbled in ‘scoping documents’ before.
      You are correct of course: the Constitution must be a bottom up document, not a top down imposed treatise.
      Edinburgh should not automatically be assumed to be Scotland’s London.
      A good start, nevertheless.
      I reiterate, I’m not for hanging around for seven years or so until all the i’s are dotted before we become an independent nation again.
      The Founding principles in summary will do on Indy Day, and the document developed in the lifetime of our first Parliament.

    • Mark McNaught says:

      Go on all you want. Absorbing every word.

  32. wm says:

    Every country has a Constitution, infact so does every working mens club, so stop nit-picking and take time to try and take in what we can, see if there is any constructive decisions we might suggest. Thanks to Mr McNaught for this work, although it will take time to read and understand, I am half way through my second read, and it won’t be my last. The quicker we get started with anything to do with advancing Indy2 the better.

  33. Craig P says:

    We need an idiots guide version for the 99.9% of people who will never read the full thing. State first principles and leave it at that. Written in language with a galvanizing effect on the Scottish electorate and that will reverberate down the ages. So in preparation for posting this comment I went and read some constitutions. Jesus, they’re dull! Ignorance of which is perhaps the root of some of the criticism here.

    So turns out what I am really thinking of is a declaration of some sort. I am not sure that can be done in advance or if it needs born of the moment of crisis.

  34. Craig P says:

    Oh, and for fun, we can have a clause in our constitution than bans a member of the Church of England from being our head of state. Not any other religion, just the CoE 🙂

    • I’m afraid you might be denied your fun given the current predictions for the demise of the CoE. By 2033 if we’re lucky.. A’ll those Anglicans leaving in droves. Poor old Welby. Shame, don’t you think?

  35. Liz g says:

    I think that there’s room for the language in the preamble to be more …. Grand/Pompous??
    We the People is a bit twee now and we are an ancient Kingdom, a Kingdom that we have been the Sovereigns of for a very long time!! Even if we did finish up a Republic.
    EG
    We the Scots,the inalienable Sovereigns of Scotland do hereby instruct and command ,that all Governing Bodies of Scotland do
    Firstly …recognise and acclaim that there is no higher authority in this land than the Sovereign Scottish People themselves….( Mibbi something about the declaration of Arbroath here)
    A wordsmith ( yes I’m looking at you paul ) could, I’m sure, come up with something suitable

  36. Alastair Gunn says:

    Well it’s an interesting effort, but I can see a few issues (beyond a level of detail that is inappropriate for a constitution IMHO).

    As written Article XI section D would seem to preclude membership of either NATO or the EU. Now there’s nothing wrong with anyone believing that membership of either or both of those organisations would be a bad idea, however they should honestly state such a position not attempt to backdoor a provision into their proposed constitution. (Article D would also seem to preclude a Scottish navy vessel moving outside of Scottish territorial waters, even if the purpose was to render assistance to a vessel in distress? Or at least, prevent such a movement until such time as the Scottish Parliament had voted in favour and there’d been a UN Security Council resolution authorising the move? Please try not to drown whilst waiting!)

    The constitution as written wouldn’t seem to prevent a single party state from arising? Article II section B5 allowed for joining organisations for lawful political purposes, what if a majority government decides to outlaw every other political party? And/or exploits Article VI Section C1 to extend parliament by 12 months, every 12 months … The article says that Parliament can be extended by up to 12 months, it says nothing about how many times this can be done!

    Article 1 Section B says that English, Scots, and Gaelic are official languages. Thus presumably meaning that all acts of parliament, not to mention the constitution itself must be available in all 3 languages. The article is silent on which language shall be judged as definitive if the meanings are not precisely the same.

    Frankly there’s too much detail anyway, create something shorter (and granted possibly a little vaguer) that mostly creates a constitutional basis for Scotland as it it now with the worst of the problems that the UK has filed off. Then have an add-on set of amendments for any extra stuff which can be voted on by the population (after a suitable period of study) on an individual basis.

  37. Liz g says:

    Also RE the Kingdom bit..
    If it is decided to keep the current Queen as head of state I can live with that..
    My issue is with an “Heirs and Successors” line. ..
    This is not what the Declaration of Arbroath was about….if Charles,William and George are to be Kings of Scotland they need to be invited/approved by us…
    Also in keeping with the Declaration and now that we are a democracy ( it would have been a military effort in the past) we also need a mechanism to remove a monarch and replace them,this is a right our founding document gave to us as well as our Sovereignty!!
    And should be reconised
    ……also if a monarchy is kept,we will need a Coronation Oath??

    • Martin Edmunds says:

      There is no place in a modern democracy for inherited status or position. Neither is there a place for loyalty to a single person or family being seen as indivisible from loyalty to the state, a situation our MPs and MSPs currently find themselves in with the so called oath of allegiance. An independent Scotland simply cannot allow itself to perpetuate this medieval nonsense. Kings Queens and princes belong in history books, fairy tales and Disney films … the have no place in any capacity in a modern democratic country.

  38. mogabee says:

    Well, it’s a starting document at least! Must admit I favour a constitution BY the people, FOR the people.

    Give us all a chance to input a section by utilising community councils, local councils or a mix of both. I feel folk would connect if they had a chance of influencing the very first Scottish Constitution.

  39. John McLeod says:

    I welcome the opportunity to see what a constitution for Scotland might look like. It provides something tangible as a basis for further discussion.

    My own preferences would be:

    1. At the start, to include a strong statement about the importance of nature and the commitment of the nation to live in an environmentally sustainable fashion. And also a commitment to work with other nations to promote co-operation and eliminate war. I know that statements along these lines are included later on, but for me these are core principles that deserve to be highlighted at the start.

    2. In terms of the more detailed clauses that follow, I would suggest:
    2.1 Specific limit on the amount of land that any individual, family or private company could own;
    2.2 Specific limit to the maximum individual or family (etc) shareholding in any media organisation;
    2.3 A stronger statement about the importance of local government, including a specific statement about number of citizens per representative unit (Lesley Riddoch has published analyses of this comparing Scotland with other countries);
    2.4 A stronger emphasis on citizens’ assemblies – there is a lot of evidence regarding how this has been valuable in other countries;
    2.5 Real democracy in all areas of life – workplaces, public bodies, etc;
    2.6 Compulsory voting;
    2.7 Specific requirement for MSPs to be accountable to constituents (e.g., to hold at least one ‘town hall’ open meeting each month).

  40. iain says:

    My rights are vested in my MP on election day, they are my voice in international relations. They earn the right through trust, integrity and manifesto commitments to speak on my behalf on these matters.

    And as a UK citizen, according to the treaties and act(s) of union 1706 and 1707, pursuant to the claim of right 1698 c.28, I and all Scottish constituency residents can recall the Scottish MPs elect from Westminster and reconvene our sovereign Scottish parliament to remedy any and all grievances with any and all laws and treaties, pertaining to Scottish jurisdictions. …. Any time we collectively want. Its in black and white…….

    I’m sick of devolved referenda they can ignore or cliches of Scots MPs they can, ignore, while they play by establishment rules……… The parcel of rogues may have sold us to bondage but they left us a key…..

    Claim of right Scotland c.28
    That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members

  41. Frank Gillougley says:

    I for one, together with the work on a detailed constitution of governance, would love to have a memorably written proclamation for Scottish Independence; a poster-sized piece of poetic prose of a text to be referred to in years to come, outlining the aims and objectives of ‘We, the Scottish People’.

    For this, I am sure the combined talents of Scottish writers could be harnessed and ‘challenged’ to deliver such a piece of work. Names abound, but I won’t suggest.

    ‘Work as if you live in the early days of a better nation…’

  42. An admirable piece of work and worthy of presentation as a starting point when the time comes. I recently read the Constitution of Ireland and was impressed system the impression it managed to convey given its brevity. However, I prefer this detailed approach as I believe any constitution needs to go beyond its intent and describe the mechanisms required to provide a government for the people by the people. Well done.

  43. Niall says:

    I am pleased to see an expert providing us with a genuine effort at a first draft of our constitution, and thank Dr McNaught for his hard work. I disagree with those who suggest we should be leaving this question until after a referendum, even after Independence itself. The provision of lies and vague promises was instrumental in the Brexit vote. I think it’s important that we identify the type of civic society we are attempting to build before we establish our state.

    I think a few points need to be looked at more carefully. Others have made some good points (I highlight those by John McLeod, above), and some I disagree with, for one reason or another.

    Article II. I think it’s vital we have this codified. However, there is little to no protection for “illegal” residents – such as those illegally trafficked. The fact such people have no protection under the law is one of the many things leading to my hatred of the Westminster government. There are only limited protections under the law for those who fail refugee tests and for visitors. It would only take the election of a right-wing government, like the Westminster Tories to place vulnerable people in a very dangerous position. They could be prosecuted, but lack the protections the rest of us have. In general I think we need to have more protections for trafficked and displaced persons. I think this one is going to be difficult – I am one of those weird utopians who favours a global open border policy, but I also recognise we live in the real world.

    The firearms clause really needs to be tightened up. This linked to land ownership and land use, which brings me to Section B Paragraph 8, which could well entrench the existing quasi-feudal system, and could even be used to undermine the present outdoor access legislation.

    I suggest we all need more protections against state and corporate power and surveillance. State surveillance is mentioned, and I think that’s a good starting point, but corporate surveillance is in many ways more insidious.

    Article V, section C, subsection 12: I thought we weren’t going to have a national church (see Section A Paragraph 2). This is a quibble. I will be advocating that we have an elected head of state in any case.

    Article XVII
    Is this the place for a definition of “who and what we are” (thanks Nicola) statement? To rephrase, we need to know who is a Scot on the day Scotland becomes an Independent State again. I take the position that any person who is currently a British citizen and lawfully resident becomes Scottish by default (otherwise we end up deporting a lot of people born outside Scotland, potentially on a discriminatory basis – the sick and disabled are less likely to be working and paying taxes, for example – in contravention of Article II). Other persons lawfully resident may be entitled to apply without prejudice to any existing citizenship, where that country recognises dual nationality. I suggest we also need to define how one becomes Scottish, and to keep that progressive and difficult for a future right-wing government to change.

    Again, I think this is good work by Dr McNaught. He recognises, and I agree, that it needs some tweaks, but I think this is an excellent start.

  44. We, the people…
    I like that.
    From this simple opening, the detail in our Constitution flows.

  45. I want to thank Dr McNaught for his work. We need people like him working for us.

  46. moe2mac says:

    Have read through the proposed Constitution and appreciate all the work that has gone into it I won’t pretend I understand it all but agree with most of it However I disagree with having Lizzie Windsor being head of state We should have a clean break from the monarchy the way Ireland did ________________________________

    • Dave Simpson says:

      IIRC that bit was written as alternatives: a monarchy or a president. IMHO this is an issue which, like EU membership and some other things, should be put to the Scottish people post independence. FWIW it isn’t an issue that I hold a strong view on: either option appoints someone as a largely symbolic Head of State. There is no real logic in a hereditary HoS, other than respect for rather patchy history, avoiding arguments, and the avoidance of redundant politicians. (President Blair, anyone? Or even the rather more acceptable President Salmond?) But at the end of the day it really isn’t a big deal.

      • Martin Edmunds says:

        I think it is a big deal Dave. The outline constitution at one part states that no aristocratic or noble titles or names will be conferred by a Scottish parliament and neither will they be ‘recognised’ under any circumstances … how can anyone reconcile that with appointing a head of state whose only qualification to that position is an accident of birth and by virtue of the fact that she holds noble names and aristocratic titles … even by invitation?

        By appointing such a person to the most important civic post in the country, at a stroke you make a nonsense of any statement that all the citizens of Scotland are equal. The position of head of state must be attainable to every citizen of Scotland regardless of the circumstances of their birth.

        • Dave Simpson says:

          OK, that’s the “anyone can be President” argument, answered in current USA by “Trump proves it”.

          With a completely democratic system the odds of any particular individual in Scotland being picked for President would be over 5M to one, which in practical terms is barely distinguishable from zero – i.e. lottery winning odds. Indeed appointment of a President by lottery makes as much sense as a hereditary Monarch and, if on occasion it resulted in appointment of a slavering idiot, well, that’s the luck of the draw, and it would demonstrate that all Scottish citizens are indeed equal.

          • Martin Edmunds says:

            Yeh, the anyone can be president idealism the Americans subscribe to is of course predicated on a caveat that you first have to have earned or inherited the millions of dollars it requires just to enter the race … a situation I would hope we could circumvent in Scotland, especially for what will be a purely ceremonial post.

            Clearly the position of president would be in the gift of the Scottish parliament, voted on by the whole parliament along non party political lines. My idea would be along the lines of a suitable list of candidates who have made a notable contribution to society but have never been involved in politics as a career … EG Tom Farmer or even Midge Ure, who has never been properly recognised for the huge part he played in Live aid … whether either one would accept the post is open to question of course lol …. My personal choice if it was today would be Lesley Riddoch .. a woman who more than just about anyone has presented a positive and upbeat view of what Scotland can and should be … I don’t know if she would satisfy my 30 year residency rule, but I don’t care : – )

  47. Graeme McAllan says:

    Frank, says it the best – “Live as you would in the early days of a better Nation” – what’s not to like? I’ll yell you then, NOTHING 😉

    • Graeme McAllan says:

      Sorry folks, my fat fingers hamper my one letter at a time typing style – I thought I had typed “tell” instead it was actually “yell” 😦

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