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16/06/14 12:00

The constitutional future of an independent Scotland

Deputy First Minister Nicola Sturgeon
Edinburgh Centre for Constitutional Law
Monday June 16, 2014

Thank you, Stephen [Tierney, Director of the Edinburgh Centre for Constitutional Law] for that introduction.

It is a great pleasure to be here at the Edinburgh Centre for Constitutional Law today to discuss the constitutional future of an independent Scotland.

It is a particular pleasure to be here at the Edinburgh School of Law where Professor Sir Neil MacCormick was such a distinguished Regius Professor for 36 years.

Neil was of course an inspiration and guide to many of us in the SNP, as well as being a pre-eminent figure in the study of the law.

He also applied his acute analytical mind to the concept of nationalism in our modern world.

He famously drew the distinction between “existential” and “utilitarian” nationalists. Or those who support independence for its own sake, as it were, and those who support independence as the best way of achieving the sort of society we want.

This being Scotland, of course, both strands of nationalisms comfortably co-exist within the country, the Yes Campaign, the SNP, and probably within most individual nationalists.

But if we look at the content of the current debate on independence, we will see it is very much about the opportunities that independence will bring Scotland – opportunities for economic growth, for a fairer society, and for Scotland's place in the world.

So the terms of the debate are very much those of the utilitarian nationalism. I will return to this theme later in my speech but I think it is no exaggeration to say that one of Neil’s great legacies is to have shaped the terms in which this historic national debate is now being conducted.

Neil’s other great legacy is as one of the most distinguished constitutional lawyers Scotland has produced.

He was one of the architects of previous models for Scotland’s written constitution and his contribution to the SNP’s constitutional proposals cannot be overstated.

So it is an immense source of pride to me to be able to publish for consultation today – and to discuss here in the University where Neil MacCormick spent so much of his distinguished career - the Scottish Government’s proposals for the interim constitution that will require to be in place for day 1 of independence and, even more importantly, our proposals for the process to produce the permanent written constitution that will follow and that will shape our independent country.

Before I get to the detail of our proposals, I want to start by distinguishing the two forms of constitutional debate that we are currently having in Scotland as we consider our nation’s future, and to elaborate on my reference to Neil MacCormick’s ”utilitarian nationalism” as an inspiration for both.

The first is the overall debate: should Scotland be an independent country? This is a debate on Scotland’s constitutional future in the broadest and - undoubtedly - most important sense.

The second is a debate about the constitution of an independent Scotland in the terms that we as lawyers might understand it, and as this Centre might study it. That is the description of where powers and duties lie in the state, and the rights of its citizens, and the underpinning texts and statutes. The foundations of the state, in other words.

It is crucial to say from the outset that these two aspects of the debate are intimately linked.

We in the Scottish Government are clear that the Constitution - with a capital “C” as it were - is fundamental to, and not different from, the range of issues with which governments deal day in and day out.

As we said in Scotland’s Future (on page 351 if you want to check the reference):

The constitution of a country defines who makes decisions on behalf of its people and how the people choose those decision-makers and influence their decisions. A constitution is the basis of everyday life, not separate from it.

That is why we made our proposals for a written constitution, and a constitutional convention, the subject of the very first paper the Government published in this phase of the debate, back in February 2013.

I also believe that the opportunities provided by a written constitution are an important part of the argument for independence.

So let me first deal with the wider constitutional debate.

The central debate we are having is a very practical debate. A utilitarian debate.

It is about the economy. It is about jobs. It is about welfare. It’s about our natural resources, the provision of childcare, membership of the EU.

And whether with independence Scotland would be better off or not.

We in the Scottish Government make the case for independence as Scotland’s constitutional future because we believe that it will lead to Scotland becoming a better country.

First, we believe it will make Scotland more democratic. We will always have the governments we - collectively - vote for.

For about half the time since the Second World War voters in Scotland have not supported the party that has formed the government at Westminster.

We now have a Westminster Government led by a party that has in the last four UK general elections won none, one, one and one Parliamentary seat in Scotland. Yet this government still makes crucial decisions for Scotland on the economy, welfare, replacing Trident on the Clyde and representing Scottish interests in Europe and beyond.

And trust me this is not some dry constitutional point (although I realise this audience might actually prefer those). To return to my initial point, this has real, practical consequences for Scotland.

The majority of Scottish MPs voted against the bedroom tax. They voted against the privatisation of the Royal Mail. They voted against changes to child benefit and public service pensions. But all these things will still happen in Scotland.

At the same time we have a Scottish Parliament. That fact recognises Scotland as a distinct political national community, and our Parliament is elected by a proportional system so that it fairly represents the views of the people of Scotland. The Scottish Government has to win the confidence of that Parliament – and thus the people of Scotland - to govern.

And again this has direct practical consequences. In Scotland we have rejected privatisation of the NHS, introduced free personal care, restored universal access to eye tests and prescriptions and, crucially, to higher education. We have also led the way with the smoking ban and climate change legislation, and we have taken measures to address alcohol consumption.

In short, the Scottish Parliament has followed policies and priorities for Scotland that have the support of the people of Scotland.

The long-term developments in voting patterns in Scotland, their divergence from the rest of the UK and the truly democratic alternative of Scotland’s national Parliament have, in my view, rendered the Westminster system unsustainable from a Scottish perspective.

It is not credible for Westminster Governments with little or no representation in Scotland to seek to impose policies on this country, a country with its own Parliament and Government - no matter what Schedule 5 to the Scotland Act might say about reserved and devolved powers. In short, our governance arrangements should reflect the underlying political realities, not seek to over-ride them. That is fundamentally undemocratic.

Independence for Scotland is the only solution that can eliminate this democratic deficit and remove these fundamental instabilities from the heart of the current political system in the UK. Only independence - completing the powers of the Scottish Parliament - can secure for Scotland the government and policy choices in reserved areas that the people of Scotland support.

The second and third main practical arguments for independence as Scotland’s constitutional future are that we can create a more prosperous Scotland, and a fairer Scotland.

I will only make three points to demonstrate the constitutional arguments at the very heart of these very practical aspects of the national debate.

First, Scotland can more than afford to be independent. The Financial Times, Standard and Poor’s, the IFS, and the Prime Minister all accept that. Even the Treasury cannot quite bring themselves to say we can’t.

In terms of GDP, per head, we are wealthier than Japan, the UK and France. We have more top universities, per head, than any other country in the world. And we have paid more tax per head than the UK as a whole for each and every one of the last 33 years.

The key constitutional and practical point here is that with independence the Scottish Parliament can deliver an economic policy tailored to Scotland’s needs, and retain the proceeds of growth in our economy in the form of increased tax revenues. A virtuous circle.

We would also take responsibility for creating growth, but that would surely incentivise us to do better.

By contrast, under the current constitutional arrangements taxation – largely – passes to the UK Treasury which then gives us a grant. The direct rewards for Scottish Governments when we invest money on growing the economy are therefore limited. Changing the constitutional arrangements will have direct practical benefits for Scotland.

My second point is also on the economy.

Ironically, as with so much of this debate, the arguments of those who oppose independence show that Scotland should become independent.

The Treasury and others identify challenges that Scotland would face in the years ahead: demographics; a legacy of debt; and pressures on public finances.

By pointing to these challenges - which are, after all, products of the status quo - opponents of independence simply demonstrate that remaining in the UK and doing nothing to address them would be the wrong approach.

Those opposing independence put forward no alternative plan to increase employment, grow the Scottish economy, and grow our working age population. Their solution to the challenges we face is to leave it to Westminster and hope for the best.

By contrast, the practical benefit of independence is that Scotland will be a national economy with all the tools of other independent states. We will no longer be a region of the unbalanced and unequal UK economy, waiting for things to be done for and to us. Independence as our constitutional future puts the practical responsibility into our own hands.

My third point relates to building a fairer Scotland.

Our Expert Working Group on Welfare recently published its second report which made a number of short and medium term proposals for a welfare system in an independent Scotland.

They identified principles – fair, personal, simple – that should inform the development of a Scottish welfare system. And they made the crucial point that, instead of the complex patchwork of welfare systems we will inherit, an independent Scotland could build a new system that meets the needs of a country of five million people.

Now I agreed with many of the group’s specific recommendations. Others require some consideration.

But the important point this work demonstrates, from a constitutional and practical point of view, is how independence will bring exciting opportunities to debate and decide - within Scotland - how to address long standing issues in new and innovative ways. In a nation of 5 million people, we can pursue reform with an agility and ambition that the sheer scale of the UK welfare system makes it almost impossible to deliver. The current travails of the Universal Credit reforms are a testament to how difficult it is to reform the UK system.

We might not always agree about the right solution. But one thing we should all agree on is that it is right for us in Scotland to make decisions to address Scottish priorities. What is unthinkable is that at the end of this engaged and exciting process we decide not to bother, and leave responsibility for these issues in Scotland to George Osborne and Iain Duncan Smith.

So that is the main debate on Scotland’s constitutional future that is taking place at the moment. An intensely practical debate. A debate about the future. A debate about how we can change our country.

But providing its foundation is a debate on our future Constitution – again with a capital “C”.

As I have noted, the very first paper the Scottish Government published in this phase of the debate – in February last year - was on the opportunities that a written constitution– and the process for developing it - would offer an independent Scotland.

As I said then, an independent Scotland can put in place a modern written constitution that:

  • embodies the values of the nation
  • secures the rights of citizens
  • provides a clear distinction between the state and the government of the day, and
  • guarantees a relationship of respect and trust between the institutions of the nation and its people.

As importantly, the process of creating a written constitution in Scotland should be energising. As well as political parties and civic society, the process should ensure that the sovereign people of Scotland are centrally involved in designing and determining a written constitution as the blueprint for our country’s future.

That paper, and our white paper Scotland’s Future, also described the legislative and constitutional steps we would take from the referendum to independence to ensure that Scotland was a fully functioning independent country from day one.

Today we make real the plans that were announced last year.

Our draft Scottish Independence Bill, and its accompanying consultation paper, set out our proposals for the steps that will follow a Yes vote in the referendum to provide Scotland with a robust platform to make the transition to independence.

The Bill also sets out the framework for the Constitutional Convention that will follow independence and will develop Scotland’s permanent written constitution.

We believe that Scotland should have a written constitution, rather than the quilt work of statues, precedent, practice and tradition that make up the constitution of the UK.

A written constitution provides certainty and security for the citizens of a state. It defines and constrains the organs of the state. It describes where powers lies and how those who wield it are chosen and scrutinised. As is well known, this is not always clear in the UK.

It also sets out the aspirations of the people of the country. And the opportunity to come together and set these out is why I believe the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.

I know this audience will want to study the Bill and the accompanying paper carefully - no doubt, minutely. So I will not spoil your enjoyment of that process by describing it in too much detail.

But I will describe some of its main features and the process that will follow a Yes vote.

The long title provides that the Bill will be an Act of the Scottish Parliament having three key purposes:

  • to provide for Scotland to become an independent State
  • to provide an interim constitution for Scotland from Independence Day
  • to provide for the establishment of a Constitutional Convention to draw up a permanent written constitution for an independent Scotland.

The first of these is simply dealt with in Section 1. This says:

“On Independence Day, Scotland becomes an independent State under the constitution set out in Part 2 of this Act.”

I might say “I like that!”, but I believe the line has already been used.

The bulk of the Bill – sections 2 to 33 – sets out the interim constitutional arrangements for an independent Scotland before the permanent written constitution comes into force.

This covers the Head of State, the legislature, the government, judiciary, and the other matters that you might expect to see.

Importantly it sets out that human rights will be incorporated into the first written constitution of an independent Scotland.

I would highlight three particular provisions.

Section 2 says:

“In Scotland, the people are sovereign.”

I rather like that too.

This is the fundamental principle underpinning the Bill: in Scotland, the people are sovereign.

This core truth resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country.

Indeed it was Neil MacCormick's father who, together with Ian Hamilton, brought the case in which Lord Cooper said that parliamentary sovereignty was a distinctively English legal principle with no counterpart in Scots law.

MacCormick and Hamilton may have lost that famous case - about the numbering of monarchs - but they won endorsement of an important legal principle.

This principle - of the sovereignty of the people - is also key to the argument for independence. The people who have the biggest stake in a successful Scotland are those who live and work here. There are better outcomes for Scotland when decisions about Scotland are made in Scotland by the people of Scotland. Sovereignty means the people of Scotland always getting the government we vote for to govern our country the way we want.

In line with that principle, our approach to the period of transition is that the powers necessary for Scotland to prepare to become independent are transferred from Westminster to Scotland shortly after a Yes vote, using the section 30 procedure under the Scotland Act 1998 or a Westminster Act.

The Scottish Independence Bill that emerges from this consultation process, starting today, will then be considered by the Scottish Parliament in the usual way.

As well as recognising the sovereignty of the people of Scotland, this approach follows the precedent of the Edinburgh Agreement and the legislation for the referendum. Westminster too will need to take legislative steps to end the union but the leading role in preparing for independence must be for the Scottish Parliament. In short, independence must be made in Scotland.

An independent Scotland will be a good global citizen.

In this respect another important proposed provision in the Bill is section 23 on nuclear disarmament.

This provisions would place a binding duty on the Scottish Government to negotiate towards the safe, speedy removal of Trident from our shores.

The provision also provides a platform for Scotland to sign up to the Non-Proliferation of Nuclear Weapons Treaty, and to do our bit to advance nuclear disarmament in our world.

I want to move on to section 33 of the draft Bill, which provides for the preparation of the permanent written constitution following independence, the third of the purposes in the Bill’s long title.

Under section 33 the first independent Scottish Parliament elected in May 2016 must, by primary legislation, establish a Constitutional Convention to draw up a permanent written constitution for agreement by, or on behalf of, the people of Scotland.

This Scottish Government has set out in Scotland’s Future some of the proposals that it would make to that Convention for the permanent constitution.

As well as key equality and human rights principles, including the requirements of the ECHR, these could include:

  • equality of opportunity and entitlement to live free of discrimination and prejudice
  • entitlement to education, a home, to public services and a standard of living that secures dignity and self-respect
  • protection of the environment and the sustainable use of Scotland’s natural resources
  • a ban on nuclear weapons being based in Scotland
  • controls on the use of military force
  • protection for the existence and status of local government and the position of island communities
  • rights in relation to healthcare, welfare and pensions and
  • children’s rights.

Some of these are provided for in the interim constitution so that Scotland can start life as an independent country with protections for key aspects of our society. The process to develop the written constitution can then decide how to replace or build on these provisions for the longer term.

These and other possibilities are described further in Chapter 5 of our consultation paper.

But the Scottish Government’s voice will be only one of many in this process. Indeed section 33 specifically ensures that the Constitutional Convention will be free from the direction or control of the Scottish Government and Scottish Parliament – it will be an independent Convention of citizens and civic society.

And the process of creating the constitution – the engagement by the people in it – will be as important in many ways as its contents.

Because the constitution of a country defines who makes decisions on behalf of its people and how the people choose those decision-makers and influence their decisions. The constitution should also set out the aspirations we have for our country and our vision for the future.

As I have said, the constitution is the basis of everyday life, not separate from it.

So the written constitution should be designed by the people of Scotland, for the people of Scotland.

The process must be participative and collaborative to reflect that the people – not politicians or state institutions - are the sovereign authority in Scotland.

I want to make two final points about the Bill and the Constitutional Convention.

The first is that it is important that the 2016 Parliament has a leading role in establishing the constitutional convention. That will be the first independent Scottish Parliament which the sovereign people of Scotland will ever have had the opportunity to democratically elect, and will have a clear mandate from the people to establish the convention.

The second is that this is a draft Bill for consultation. The consultation period runs until 20 October, that is well after the referendum.

So I encourage you all to study the proposals carefully, and I hope that many of you will contribute your views to the Government – and of course that we have the opportunity to put them into the real Bill when it is introduced after a Yes vote.

I want to end by considering one further aspect of Scotland’s route to independence, closely tied to the transitional process I described earlier. That is the approach of the Scottish Government– and the Westminster Government – to the negotiations that will follow a Yes vote.

There has been a lot of rather lurid and frankly fanciful speculation about this period.

That the negotiations would be acrimonious and bitter.

That the political parties in the rest of the UK would stand on a platform of hammering the Scots in the 2015 General Election.

And metaphors about divorce – in doubtful taste – abound.

But despite all this campaign rhetoric – for that is what it is and it all comes from people opposed to independence – we can confidently expect the negotiations following a Yes vote to be timely and constructive leading to two friendly and viable states from Scotland’s independence. Indeed, a moment’s thought tells us that this is in the interests of all concerned.

Before I expand my reasoning on this, let me make a connection to the written constitution that I have been discussing so far.

We all know – and tragically the world shows us – that it doesn’t matter how well intentioned or finely worded a constitution is. A constitutional document in itself cannot create a democracy, or secure the rule of law or the rights of minorities.

What is important is the behaviour of the actors in the system. That is, that the document embodies and reflect the values and ambitions, perhaps even the consciences, of the people of a nation.

That those in government, politicians, the police, the judiciary, the legal profession, the media, all the people that make up society respect the values the constitution describes, and internalise them and act according to them.

And here in Scotland, and the UK, we have the good fortune to live in a society that does indeed respect democracy, and values the rule of law and we are in the midst of a peaceful, constitutional debate about independence.

Other parts of the world are not so fortunate.

And just as the finest written constitution cannot, sadly, by itself impose democracy and the rule of law, neither can some loose words in a hard fought campaign undermine the democratic traditions that we have in this country.

So in the event of a Yes vote, the people of Scotland will have spoken. The negotiations will take place against that central truth.

Just as the negotiations for the Edinburgh Agreement were a recognition of the democratic mandate created by the 2011 Scottish Parliament elections.

The Westminster Government was quick to recognise that, and to recognise the duty that they had – morally perhaps, but also to be true to their tradition – to facilitate that referendum. And the Prime Minister and the Westminster Government – and indeed the Houses of Parliament – deserve full credit in appreciating that duty, and in acting on it, in a constructive and cooperative way. It is that evidence that gives me confidence in the process that will follow a Yes vote.

In those negotiations, and in that Agreement, both Governments also looked beyond the referendum and agreed:

The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.

We in the Scottish Government have been thinking about and preparing for these negotiations with the Westminster Government and indeed others.

We have done in-depth analysis and published reasonable proposals we believe are in the interests of all the parties involved.

For example, on the currency, the Fiscal Commission Working Group, complete with two Nobel laureates, examined the options and recommended a Sterling zone in the interests of both Scotland and the rest of the UK.

We are confident that analysis will win the day, and a currency union will be negotiated after independence, whatever UK Ministers say in the heat of the debate. Partly because it has already been said privately - and indeed just a couple of days ago, Ruth Davidson publicly indicated that she might also favour a currency union in the event of a Yes vote - but mainly because it is common sense.

Similarly we have made reasonable proposals to build on existing arrangements for a GB energy market, a common research area, and to share some services for a transitional period. We have outlined various approaches to dividing assets and liabilities. All of these we believe both recognise Scotland’s past and continuing contribution, and are in the interests of all concerned.

On the EU, we have identified how Scotland can continue its membership seamlessly on independence – again an outcome benefiting Scotland, the rest of the UK and other member states.

It is not just common sense and our democratic tradition that will drive progress in negotiations. Both governments will want to help citizens and businesses across the UK navigate the path to a new constitutional future as easily as possible. Few people would dispute that a co-operative approach to negotiations is the way to achieve this.

We believe there are a number of common sense, practical principles that will inform and guide the negotiations:

For example, a principle of continuity – services in reserved areas in Scotland – and from Scotland to the rest of the UK - continue unless and until it is agreed by the two governments that they should be varied or discontinued

A principle of openness and joint responsibility for an effective transition – an agreement that the two governments will work together for an effective transition.

And a basic principle of fairness, particularly in the division of assets and liabilities.

I believe that a combination of these kinds of principles, and the reasonable proposals we have already made, are in the interests of both Scotland and the rest of the UK, and our other friends and allies.

I do not pretend that there will not be some hard bargaining, and that there will not be disagreement. There are difficult issues to resolve.

But fundamentally it is common sense that after a Yes vote, it is clearly in the interests of both Scotland and the rest of the UK to negotiate for two viable, friendly, functioning states and to do so in a timely manner.

People across these islands know that the ties that matter between our nations—of family, culture and history—do not depend on Westminster; they will endure regardless of how we are governed. They also know that Scotland and the rest of the UK will be the closest of allies and friends after independence.

We have only to listen to the words of the President of independent Ireland during his state visit to the UK earlier this year. He said:

“Our nations share a unique proximity. We also share a common narrative, woven through the manifold connections between our people and our heritage”.

Those words demonstrate, through the example of independent Ireland, that political independence and a strong and enduring social union go hand and hand. And that the relationship between an independent Scotland and the rest of the UK will be as close and constructive as befits this common history and geography.

And that is the position that I firmly believe we will achieve following a Yes vote, and following negotiations with our colleagues at Westminster.

Today I have discussed three important elements of the constitutional future of an independent Scotland.

First, the practical – utilitarian - benefits to Scotland of changing our constitutional arrangements – for our democracy, for our economy, for the fairness of our society.

Second, the actual Constitution of our independent Scotland, both the draft Bill for an interim constitution we have published today, and secondly the process and potential content – and purpose – of our permanent written constitution.

Third, the negotiations and agreement we will reach with the rest of the UK, and the EU, and how these will form the basis of Scotland’s international constitutional position of close friendship with our neighbours.

Each of these is an interesting and exciting topic in its own right. It is a great privilege for those of us involved in this debate to be able to consider all at once, as well as the wide range of other issues this independence debate has raised.
It is a great sadness that some - such as Neil MacCormick – are not with us, not just to add their wisdom, but also because we know they would have relished the opportunities we have.

So it is for us who have the good fortune to be part of this generation of Scots, to do justice to their memories and to our country by debating these subjects with the seriousness and passion they deserve, with respect for each other and for the people of Scotland.

I hope I have stimulated such a debate today, and I look forward to your questions.

Thank you.