Public Law

First Minister Alex Salmond used his speech to the Foreign Press Association in London last week to announce his personal commitment to a written constitution for an independent Scotland.

The First Minister said that an SNP government would “make it one of the first duties of the parliament of an independent Scotland to establish a convention to draw up that written constitution.”

The First Minister stated that all political parties and citizens of Scotland would be encouraged to get involved in the creation of a written constitution, and set out some of the provisions he thought it should contain. These included the right to free higher education, rights to housing for people who are made involuntarily homeless, a ban on the possession of nuclear weapons and the rules of engagement applying to Scottish armed forces.

Some of the commentary on this announcement has queried whether such issues would be appropriate for inclusion in a constitution rather than being decided through the democratic process, with some of the press coverage focusing on the cost of guaranteeing free higher education, and the prospect of thousands of students from the rest of the UK and Europe arriving in Scotland to take advantage of the proposed constitutional right.

One point worth exploring would be the extent to which the proposed written constitution would allow legislation and government actions to be challenged as unconstitutional in the courts. The First Minister has not always welcomed such judicial oversight, but it is commonplace in systems with written constitutions.

Although any adoption of a new written constitution would only occur post-independence, the SNP’s support for it should be of significant interest to constitutional lawyers like us. Whether it is of interest to normal people remains to be seen (per Secretary of State Michael Moore’s claim that people don’t want an esoteric conversation between politicians about constitutional law”) but we will certainly wait with bated breath to see if any flesh will be put on the bones of the First Minister’s proposal, and for more detail about the possible framing and scope of a written constitution.


Charles Livingstone

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