Friday 23 June 2023

Yousaf has unwittingly destroyed the SNP's own independence argument


In its new paper Building a New Scotland: Creating a modern constitution for an independent Scotland the Scottish Government argues for the benefits of having a written constitution and proposes certain things to be included in it. I doubt one single independence supporter would vote for independence in order to obtain a written constitution, but at times like this the SNP needs every argument it can get. But it turns out that this is a poor argument and one that is rather self-destructive.

There are lots of sensible systems of government around the world. There are constitutional monarchies like in Denmark, Norway, the Netherlands and the UK. There are Republics like the USA, France, Ireland and Germany. There are unitary states like France, UK, Norway and Denmark. There are federal states like USA, Germany, Australia and Canada. Nearly every state, except in fact Israel, New Zealand and the UK has a written constitution.

All of these systems of government have evolved for historical reasons. The Netherlands is not a worse country because it has a monarchy than France which does not. A unitary state like France is not worse than Germany because it lacks federalism. New Zealand is not obviously a worse country to live in than Australia because it lacks a written constitution.

There are arguments in favour of written constitutions and arguments against. The USA still suffers because of the second amendment to its constitution that says

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

These words and the interpretation that constitutional courts have put on them are directly responsible for Americans having the right to own military weaponry including machine guns that the founding fathers never dreamt would exist when they talked about a militia. School shootings and the American murder rate being much higher than in Europe are a direct result of this amendment ratified in 1791.

So too the 18th amendment to the constitution which led to prohibition was directly responsible for the rise of the mafia and gangsterism in the USA until its repeal by the 21st amendment in 1933. Making prohibition a matter for the constitution did not stop drunkenness nor did it make the USA a more lawful place to live.

The strength and also the weakness of a written constitution is that it is extremely difficult to change it.

Article 5 of the US constitution sets out the process of amending it

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

No wonder the US cannot get rid of article two and retains the right to bear arms. It is a wonder that it was able to get rid of prohibition. It no doubt required the chaos unleashed by 18th amendment to get everyone agree to the 21st.

How Scotland created its constitution and the rules of amending it would be determined under the circumstances of it becoming an independent state. But one thing is clear having a constitution involves establishing principles that are extremely difficult to change. A two thirds majority might be required or some other sort of super majority or a referendum with a certain turn out.

It is for this reason that what the SNP proposes to include in Scotland’s constitution is so concerning. Constitutions normally include very general rights and responsibilities, but the SNP proposes a right to free health care and the protection of the NHS. It argues for a constitutional prohibition on nuclear weapons and the right to various equality measures. But all of these things are matters for present and future debate and ought to be the subject of simple majorities rather than super majorities.

It is absurd to include in a constitution the right to free healthcare because free health care depends on the state being in a financial position to provide it. Not every state in the world can. The model of healthcare that was proposed by Beveridge in 1942 and enacted by the post war Labour Government was for a National Health Service free at the point of use for all British citizens wherever they lived in the UK. The word National in NHS refers to the whole of the UK even if healthcare was from the beginning devolved. But it is just this model that is threatened by Scottish independence, which would change the meaning of National in NHS to mean the same as National in SNP, i.e., it would only refer to Scotland.

It might or might not be the case that Scottish citizens would have the right to free health care in the former UK, but that right would now be contingent. We do not automatically have the right to free healthcare in other countries. So, the SNP would in fact destroy the NHS as originally envisaged and call it protecting the NHS. I think I would prefer an unwritten constitution and keep my right to free treatment while on holiday in England, Wales and Northern Ireland.

Just as the founding fathers of the USA could not envisage what the right to bear arms would mean more than two hundred years later, so too we cannot envisage whether it might be necessary to have nuclear weapons based in Scotland. For instance, NATO might require it, or threats from future enemies might make it prudent. But a future Scottish Government elected on a mandate of allowing nuclear weapons into Scotland would not be able to base them here unless it could first change the constitution.

So too a future Scottish Government could not adopt a French, German or Swiss model of healthcare even if the majority of Scottish voters wished it, because it would require a super majority to change the constitution.

This is the most worrying aspect of the SNP proposing to include matters that are subject to legitimate political debate into a constitution that would be extremely difficult to change.

It would be possible for instance for a party to include in its manifesto on numerous occasions the proposal to change a certain right included in the constitution. It could form a government year after year and have majority support for decades only to never reach the two thirds majority required for the change. But this is obviously undemocratic. It is the tyranny of constitutionalism that the UK is free from. A British Government with a majority can do what it wishes and can fulfil the mandate on which it is elected. A future Scottish Government could not.

Perhaps the worst aspect of the SNP’s project of creating a constitution is the hypocrisy involved. The SNP expects to be able to win Scottish independence by means of a referendum in which it gets fifty percent plus one vote. Alternatively, the SNP has proposed that it might achieve independence by means of a General Election turned into a de facto referendum winning with fifty percent plus one vote. Some have suggested that a simple majority in Holyrood might be enough to obtain independence.

There are no super majorities required for this largest of constitutional changes, but once independence is achieved all sorts of relatively minor issues would be subject to super majorities.

The SNP in fact benefits from the UK not having a written constitution, because if the UK like most other countries did have such a constitution it is quite certain that reserved constitutional issues could only be decided by the sort of super majorities that the SNP would require for constitutional change in an independent Scotland.

More importantly if the SNP thinks that it is democratic for a future Scottish Government elected by a majority of the electorate to be prevented from enacting a manifesto commitment because of the Scottish constitution, then its whole argument for Scottish independence falls apart.

It is not undemocratic to refuse an SNP Government’s request for a second independence referendum because it won a majority of seats at Holyrood or Westminster or even if it won fifty percent of the vote, because the SNP itself does not think such a situation would be undemocratic in an independent Scotland, where a government with majority support could be prevented for decades or indeed forever from enacting its manifesto commitments because of a constitution.

If governments with majority support can democratically be constrained from enacting their manifestoes in a future independent Scotland, which is what the SNP is arguing, then they can democratically be constrained by a British Government that because of the Scotland Act that set up the Scottish Parliament controls reserved matters like the constitution, i.e., independence.

The Scotland Act is the constitution of the Scottish Parliament. It requires a majority in Westminster to amend it. There is nothing undemocratic therefore in requiring the SNP to obtain some sort of super majority to obtain constitutional change in the UK. After all this is exactly what it would require in an independent Scotland.