A constitution drawn up by the people could bring new life to independence debate

The SNP leadership appears to have grown mistrustful of public involvement in the political realm. At least, that’s the impression after news that gatherings outside Holyrood are set to be criminalised and the transitional constitution for an independent Scotland will be written by a hand-picked group of independence supporters.

It might seem strange for a Yes supporter to have a problem with that latter proposal.

But the business of nation-building is too big for one party or even one side of the argument alone, so it’s surprising to see the ‘modern’ SNP take this first pivotal step in an old-fashioned, narrow, technocratic Westminster way. Why does the SNP not start as it presumably means to continue and hand the task of framing Scotland’s new democracy over to the people?

Admittedly, Mike Russell ¬– party president and head of the SNP’s new independence unit ¬– assured the party’s weekend conference: “This won’t be a blueprint for Scotland after independence – that has to wait until all the citizens of the new state can join in the effort. But it will give a comprehensive and detailed guarantee of rights … as we move through the referendum to independence.”

It’s good to know the full constitutional process will finally have more hands on the tiller. But why wait?

Especially when Alba delegates stole a march on their fierce rivals by calling for a post-independence constitution written by randomly chosen citizens’ assemblies followed by a referendum. Still, Alba’s list of constitutional hot potatoes doesn’t include the size, funding or division of powers between central and local government or mention land ownership ¬– demonstrating why democratic warm-up exercises are so badly needed.

If we want a new Scottish constitution a lot of discussion is needed to avoid simply putting a kilt on old Anglo/American defaults.

So do SNP leaders think ‘ordinary’ Scots are too hard to herd and too easily daunted by an important task? A gathering of dependable, usual suspects is certainly easier, but that doesn’t make it right, especially because ‘transitional frameworks’ have a nasty habit of becoming permanent tablets of stone, whose embedded presumptions are hard to question, overturn or dislodge.

Icelanders found this out the hard way, when they declared independence from Denmark in 1944 and adopted its (slightly amended) constitution, fully intending to revise it within months; 77 years later that effort is still going on.

The country’s Crowdsourced Constitution ¬– set up in 2009 by then Prime Minister Jóhanna Sigurðardóttir ¬– has become a world-famous, people-led process and its first step, performed by a People’s National Forum of one thousand randomly chosen Icelanders, was precisely to devise the ‘broad brush principles’ Mike Russell is talking about. 25 folk were then elected to work out the full details in a Constitutional Assembly – though professional politicians were barred.

Perhaps that exclusion explains the resistance of MPs to a constitution approved by 66% of Icelanders in a 2012 referendum. Still, as lawyer and Constitutional Society Chair Katrín Oddsdóttir observes, “Systems reject change but justice slowly finds its own path.”

By contrast, Norway’s constitution ¬– written in 1814 by 112 Norwegians ¬– has always felt so owned by its people that the date of publication ¬– not the date of formal separation from Sweden ¬– is still celebrated as Independence Day.

The Irish Citizens Assembly also managed to go where politicians feared to tread, proposing legislation ending the bans on abortion and equal marriage which were backed by the Irish people in referendums. Why do people-led processes have such an impressive track record? Put simply, the professionals are on tap, not on top. And that’s the right way around.

So why doesn’t the SNP hand the task of drafting a transitional constitution to the Scottish Government’s tried and tested Citizens’ Assembly?

Of course, some No voters might decline, just as some supporters of the abortion ban in Ireland didn’t join that Citizens Assembly. But enough took up the challenge to make sure scrutiny focused on details that most concerned the opponents of change. Even if some No voters are wary, others will join and this ‘crowd-sourced’ approach will create a powerful precedent for all that follows.

The referendum process will either be bottom-up and empowering, employing techniques our neighbours have used for decades, or top-down and technocratic business as usual.

That can’t be allowed to happen. No other modern country is embarking upon constitutional change ¬– transitional or otherwise ¬– by rubber stamping templates created by academics, constitutional experts or selected pressure groups. A genuinely inclusive process could bring the whole independence debate alive ¬– a document drawn up by party political appointees cannot, however well qualified they may be.

The SNP leadership seems unaware of the siege mentality it’s currently displaying, although an emergency motion to cancel proposed restrictions outside Holyrood was passed at the SNP conference while Alba conference delegates in Greenock voted for “coordinated action to defend the right to protest without fear of prosecution, outside the Parliament”.

There’s speculation the proposed restrictions could also face legal challenge, and whilst they were initiated by the Corporate Body not Nicola Sturgeon, it’s impossible to think they could have progressed without SNP support.

Perhaps the SNP has no real plans to produce a transitional constitution, and the pledge – not contained in Mike Russell’s 11 point plan – was an off-the-cuff idea to placate restive delegates in a relatively pointless gathering, eight weeks before its annual conference, that just happened to clash with Alba’s first conference. So, what were these four days of grandstanding actually all about?

No doubt, the SNP will argue their democratic instincts are in far better fettle than Boris Johnson’s and folk like myself have the wrong end of the stick. Fine.

Except that parties which insist deep-seated policy complaints are really inconsequential messaging glitches, eventually find themselves out on their ears.

Enrique Miralles designed a space for public assembly outside Holyrood because Scotland was to have a more democratic, accessible parliament than Westminster. If ‘the people’ are to become a vital component of our developing democracy, not a barely-tholed obstacle, that founding principle must be baked into everything done in the months and years leading up to indyref2.

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The Herald Scotland

The Herald is a Scottish broadsheet newspaper founded in 1783. The Herald is the longest running national newspaper in the world and is the eighth oldest daily paper in the world. The title was simplified from The Glasgow Herald in 1992