Mike Vickers' Blog

December 17, 2013

The Scotland’s Future states that given independence the government would create a Constitution

Filed under: History in the making, Scottish Independence — derryvickers @ 10:30 pm

I have been thinking for some time what form a constitution for Scotland could take.

I have considered:

  • the Constitution for Ireland in 1937
  • also a course I went to on the Philosophy of the Scottish Enlightenment and we touched on the preamble to the US Constitution which itself had taken advice from members of the Enlightenment.

These and many others focus on the fundamentals of equality, human rights and liberty.  These appealed to me and got me thinking.  I started with these ideas and what flows from them  and came up with the tree below (read left to right) (I freely admit to enhancing the tree as it now stands where some of these articles of considerations  look relevant to me)

Equality before the Law Justice Habeas Corpus
Trial by Jury
Gender and Race  
Opportunity Education
  Right to vote
Inalienable Rights Freedom Life Security  
    Welfare  
Personal Freedom Conscience Religion
Expression
For others as for yourself Family  
Democracy Civic Society
Right of Association
Commonweal
Charity  
Home      
Opportunity Possessions Land
Work
Leisure

 

I realise that this does not include some of the detailed clauses that have been suggested by the Scottish Government eg nuclear energy, NATO etc. and I will set out my reasons below.

Looking again at the tree it came to me that what I was targeting was human rights.  I therefore looked up the European Union’s Convention for Human Rights and I recognised immediately a close similarity.

An area I had personally most concern with was Property , something that Adam Smith consider inalienable, and I find that the EU was equally concerned, so much so that the first draft did not contain any mention of property.  Further investigation indicates the Right to Property is a concern of all such conventions on human rights.

Even Adam Smith stated in his Wealth of Nations
‘ Wherever there is great property, there is great inequality … Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”[6] (Adam Smith, Wealth of Nations)’

So in my tree above, I have chosen to use Home, rather than Property as Home is what should be an inalienable right – but I also include Possessions   under a heading of Opportunities. And there is the very tricky question of current land ownership.  Land ownership in Scotland is a concern to many free thinking people, yet all declarations of human rights recognise that citizens have a legal right of ownership.  It therefore becomes a matter of politics on how land may be transferred between citizens – but more below.

Constitution and Politics

W Elliot Bulmer in his book A Model Constitution for Scotland follows much the same theme as I do in respect to human rights as the basis of his Model Constitution.  However he considers that it is also necessary to include in the Constitution a socio – economic dimension. But this may be because he takes as a tenet of any Scottish Constitution that Scotland would naturally be liberal democratic; and while I would hope this to be so this to me is a Political Decision.  In principle Scotland could become a Marxist state after Independence, certainly one well left of centre,  if this is the will of the people so be it,  provided only that the state adheres to  the Constitution as set out above.

I therefore consider that the Constitution should and must be above politics – the Constitution should focus only on the Human Rights of its citizens.

Looking again at Bulmer, he has a weighty section on the structure of Scotland’s Government eg its Executive and its Parliament.  This is of course necessary and he argues for a  consensual government rather than a  presidential one;  but Wiki in considering a Constitution considers the government of the state must respect and should be callable by its citizens to account to protect them and their rights’

Fundamental rights are a generally regarded set of legal protections in the context of a legal system, wherein such system is itself based upon this same set of basic, fundamental, or inalienable rights. Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part owing to the idea that human beings have such “fundamental” rights, such that transcend all jurisdiction, but are typically reinforced in different ways and with different emphasis within different legal systems.

Governments and their structures come and go; if we take the Westminster Government, it only a year ago that the question as to whether voting should change to an AV system was voted on.

To reiterate the Constitution as set out above is the foundation upon which the Government of the State should be built.

There are many questions that remain subservient to the Constitution for which the Government of the day are responsible for.  Examples are:

  • what are the physical boundaries of the State?  Some people of the North East have indicated a desire to join an Independent Scotland.
  • considering International relations – this is a difficult issue considering that I was brought under the ‘Christian’ ethic of ‘For others as for yourself’ – how do we resolve the situation that 2/3 of the world are much poorer than Scotland.  I suggest the need for charity but there is the old adage ‘charity begins at home’
  • At a lesser level the Scottish Government proposes to say No to nuclear power, but would it reject nuclear fusion if this comes to fruition.
  • in these cash strapped times not all aspects of the Constitutional tree can be given equal weight and funding.  It is the Government of the day to come forward with a balanced budget that it on behalf of its mandate it believes the most appropriate but this is the knob of politics.  A very current example is the NHS, how much of the total budget should be allocated to it  and how should the NHS spread  the resources it is provided with

At a higher level are the rules for Commerce.  Here I attach a section from the Irish articles

  • Everyone has the right to an adequate      occupation.
  • The free market and private property must be      regulated in the interests of the common good.
  • The state must prevent a destructive      concentration of essential commodities in the hands of a few.
  • The state must supplement private industry      where necessary.
  • The state should ensure efficiency in private      industry and protect the public against economic exploitation.
  • The state must protect the vulnerable, such as      orphans and the aged.
  • No one may be forced into an occupation      unsuited to their age, sex or strength

These would plug into what I have in the structure above as Inalienable Rights > Opportunities > Work

It could be argued in going down to the Work level itself in the Constitution I am going down too far.

In summary there needs to be fundamental articles of the Constitution which are inalienable; set in concrete for at least the next 100 years and these articles need to set sufficiently general so that below them a country has the flexibility of manoeuvre.  A prime consideration is Taxation and where it should rest in terms of its citizens and its commercial interests.

The Constitution should be above Politics.  .

If this point is true then Scotland has a Constitution already if it becomes a member of the EU and that is the European Convention of Human Rights itself.  Bulmer says that the EU Convention is not precise enough and he will know better than I, but then his book takes as a starting point that Scotland needs its own constitution.

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