Scotland needs a Constitution (a written, codified and entrenched ‘supreme law’ that regulates the forms, powers and responsibilities of the institutions of the state and which defines the basic rights and liberties of citizens). This is a non-negotiable point. In order to be a stable and flourishing democracy, there must be decision-making structures and authoritative procedural ground-rules that are endorsed by the people and are binding on the Government and Parliament.
Without a written and enforceable Constitution, the state will not be a ‘public thing’ [res publica], belonging to the whole community of the realm, but will be the private fiefdom of whichever party or leader holds office at any given moment. Without it, although we may have certain liberties, we will enjoy them only at the grace and favour of our governors; having no Constitution to protect us, and so no title-deeds to our share in the common possession of our rights, every liberty could be taken away by a vote of the parliamentary majority, without any form of peaceful and lawful recourse.
We are not to imagine that such threats to liberty are chimerical. We see the consequences of non-constitutional government (a better term might be ‘parliamentary absolutism’) in the UK, where the Westminster Government, unfettered by a binding Constitution, has even considered making arbitrary ‘suspensions’ of the European Convention on Human Rights.
The Constitution as a Political Document
There is growing enthusiasm, at least in certain quarters of Scottish society, for a Constitution. Many are coming to recognise that our problems are not simply due to isolated failures of party policy or leadership, but to systematic failures of governance that only a new Constitution can address.
Yet very little of this enthusiasm is directed at the institutional and procedural mechanisms of the Constitution. Rather, the focus of attention has been on a few highly-visible substantive or symbolic issues, such as choice of currency, the monarch’s coronation ceremony, the status of the Church of Scotland, the banning of weapons of mass destruction, and the public funding of higher education. All of these are important issues, and well-worth considering, but they are peripheral to the constitutional structures and processes of a democratic order.
This lack of concern over institutional and procedural details is not surprising. It stems from a lack of constitutional experience. We are conditioned to think in terms of policies and parties, not enduring constitutional provisions that transcend the prevailing parliamentary majority. It is tempting, therefore, to think of the Constitution as a sort of hyper-manifesto, into which one party or section of society pours all its policy preferences. While unsurprising, this tendency is nevertheless alarming. Such partisan and programmatic Constitutions seldom last; rather than acting as instruments of unity and healing, they can perpetuate disagreement and division.
If Scotland is to have a productive constitutional debate that is conducive to arriving at a good and stable Constitution, we need to clarify what a Constitution is, and what it is for. Perhaps most importantly, we must also be honest about what a Constitution – or a Constitution alone – cannot do.
This debate starts with a recognition that Constitutions are more than just legal documents. They are also (invariably, unavoidably, and rightly so) political documents. A written Constitution does not simply prescribe citizens’ rights and specify the workings of public institutions, but also expresses something important and enduring about the community’s values and self-identity.
In many cases, this declaratory, ‘community-defining’ function of the Constitution is explicit. The Constitution of Malta (1964/1974), for example, establishes Roman Catholicism as the national religion and gives the Roman Catholic church considerable privileges over public education (Art. 2). Similarly, but conversely, the French Constitution proclaims the ‘national creed’ of ‘Liberty, Equality and Fraternity’. Those who do not maintain this creed commit apostasy against la république. If they are French, they belong to ‘another France’ – a France that, despite the occasional efforts of reactionaries to revive it, died in 1789.
Malta and France have achieved stability under these constitutional provisions because these ‘creedal statements’ reflect a general consensus in their respective societies – even if, in France, that consensus could be achieved only after a century and a half of recurring revolutionary uncertainty.
But where no such consensus exists, where a multiplicity of social, religious and political ‘creeds’ co-exist in a state (as is likely to be the case in an independent Scotland), how can the consensus necessary for constitutional stability be found? One solution is to limit the scope and ambition of the Constitution, so that the Constitution simply embodies the decision-making ground-rules (and minimal fundamental rights) necessary for the maintenance of a pluralistic democracy, while leaving all matters of policy and substance to be determined by ‘ordinary’, sub-constitutional, party politics. As I have argued elsewhere, there is a strong case to be made for this approach. By limiting the Constitution that which is accepted as fundamental to democracy ‘quod semper, quod ubique, quod ab omnibus‘ (always, everywhere, by everyone), the Constitution can enjoy the broad support and immunity from partisan controversy that is essential to stability.
Yet the discussion of values is impossible to avoid. Even the most minimal and open-ended democratic Constitution rests on the proposition that political disagreements should be settled by open discussion and universal suffrage, that the government ought to be accountable to the governed through periodic elections, and that the civil liberties necessary for this to occur should be protected. This implies and requires, at the very least, a pragmatic commitment to certain civic or democratic values (as opposed to, say, theocratic, plutocratic, or militaristic ones). But how can such a broad consensus of fundamental values be found, despite deep and sometimes intractable differences of opinion on the substantive ends of politics? Is it possible, in the absence of a common faith, to find maintain common democratic deliberation over common goods?
Creed and Covenant
The necessary solution is to separate ‘creed’ from ‘covenant’. A creed, in this sense, is statement of ideological beliefs. Membership of a creedal community is predicated on sharing these beliefs. Those who do not subscribe to those beliefs are not full members. A church is, in most cases, the archetypical creedal community, but the concept can also be applied in a political sense; a strongly ideological political party is a creedal community and its manifesto is its creed.
A ‘covenant’, meanwhile, is an articulation of mutual promises based on shared values, principles and objectives, but which is both broader and less exclusive than a creed. It speaks not so much about what one believes, as how one undertakes to act. The essence of a covenant is its mutuality. Trade unions, guilds, self-help groups, neighbourhood watch groups, residents’ associations, and so forth, might be regarded as covenantal communities. They contain within them people of different creeds, who disagree about fundamental aspects of belief, but who nevertheless promise to work together for common purposes.
Unlike most orthodox trinitarian churches, Unitarian and Universalist churches are non-creedal. They do not have a ‘statement of faith’, consisting of doctrinal positions that everyone must hold. Instead, they are ‘covenantal’ bodies – they are bound together not by uniformly shared beliefs, but by mutual promises. They recognise that we do not have to believe alike or be alike in order to work together.
Of course, traditional Unitarian and Universalist Church Covenants have a distinctly religious flavour. A typical and widely-used example of a Unitarian-Universalist Covenant reads as follows:
‘Love is the doctrine of this church,
the quest for truth is its sacrament,
and service is its prayer.
To dwell together in peace,
to seek knowledge in freedom,
to serve humanity in fellowship,
to the end that all souls shall grow
into harmony with the Divine.
Thus do we covenant with each other and with God.’
A purist might argue that the first sentence of this covenant is pseudo-creedal in nature, but it is a very thin, minimal and broadly accessible statement; it differs quite considerably from, say, the more extensive and exclusive requirements of the so-called ‘Apostles’ Creed’. Nevertheless, the trust of the Covenant is not concerned with what ‘we believe’, but with what we promise to do together, and how we promise to do it. It recognises that, despite plurality of belief, the Covenanting members agree on how to treat and support one another in the achievement of common goals.
In a political sense, some states commit themselves to a particular creed. At the extreme, Communist States specifically define themselves in creedal terms: to be a non-communist citizen of a communist state is to be, at the very least, a non-privileged outsider. To a lesser extent, the United States and the French Republic are also, it could be argued, ‘creedal’ states; they both come with a set of enshrined ideological commitments, dissent from which makes one ‘un-American’ or ‘réactionaire‘.
Other states do not have a creed. There is no ‘belief’ or ideological commitment associated with citizenship, the holding of which makes one an ‘insider’, and dissent from which makes one an ‘outsider’. Yet these non-creedal states may still be held together by a ‘Covenant’ – a set of loosely defined and broadly shared values, implicitly or explicitly recognised, that act as guidelines of civic behaviour.
Covenant and Constitution
Just as the Covenant is broader and less exclusive than a creed, it is also quite different from a Constitution. A ‘Constitution’ is an authoritative expression of the basic ground-rules of a community. It defines the fundamental rights of the members of that community and prescribes its institutional forms and decision-making procedures.
Although the various creedal and covenantal communities which make up a flourishing society will often have their own constitutions, by which they regulate their internal conduct (every Tennis Club has its constitution), here we are concerned with the Constitution of the body-politic: the State, ‘res publica’, or ‘community of the realm’. The res publica is a covenantal community of whole realm, governed in accordance with its Constitution, in which we agree, despite the differences of creed which divide us, to practice mutuality through living together under common rules for our common good.
According to this understanding, the two instruments which define the res publica, the Covenant and the Constitution, tend to complement and inform each other. The Constitution is both the foundation and the apex of the ‘common rules’, while the Covenant is what describes and articulates our commitment to the ‘common good’. In other words, the Constitution expresses the how, the institutions, the processes, the rules; the Covenant expresses the what, the aim, the vision, the purpose.
Again, this may be illustrated by comparison to the functioning of a covenantal church. Most Unitarian-Universalist churches have both a Covenant and a Constitution.The Constitution may refer to or incorporate the Covenant, but these two documents differ in their intention, their form, and in the role they play in the community. The Covenant sets out the aims and values of the congregation. The Constitution sets out the decision-making rules of the congregation – how its executive committee is to be elected, the appointment of trustees, the rules for the conduct of Annual General Meetings etc. The Covenant says what the organisation is for, the Constitution how it operates. The Covenant is often short, literary and memorable, the Constitution is longer, more involved, and written in legalese. The Covenant seeks to express the spirit of the institution, the Constitution is its law. The Covenant has a theatrical, almost ‘liturgical’ role; it may be recited publicly, or displayed prominently behind the pulpit for all to see. The Constitution it is rarely referred to, except perhaps to settle points of order or procedure at congregational meetings.
Typically, if the Covenant of the res publica is explicit, it will be contained in a Preamble or Declaration, which is often non-justiciable and removed from the prosaic portions of the Constitution. If the Covenant is implicit, it may be buried in various constitutional or quasi-constitutional documents. For example, the Canadian ‘Covenant’, it could be argued, is to maintain ‘peace, order and good government’ through a parliamentary democracy ‘similar in principle to that of the United Kingdom’.
It is possible to have a Constitution with only a very thin and implicit Covenant. The preamble-less and ‘pragmatic-procedural’ Constitution of the Netherlands would be an example of the this. Such a thin, implicit, Covenant may be necessary in situations where consensual agreement on ultimate aims and purposes is difficult to find, but where agreement can be reached on basic democratic procedures. It is also possible to have a Covenant without a Constitution. For example, the Commonwealth Charter addresses the general values, aims and principles of the Commonwealth of Nations, without setting up any collective decision-making and office-holding rules.
Constitution before Covenant
Covenants are exciting, memorable, thought-provoking and eye-catching. They can even be poetic, as Angus Reid’s ‘Call for a Constitution’ (a ‘covenant in poetry’, written on walls from tip to toe of Scotland) amply demonstrated.
There is great thirst, amongst many progressive people in Scotland, for such a national covenant. It is felt that a great statement of aims, values and principles, thus enshrined, celebrated, repeated, venerated, lifted up and bowed down to, written on the door-posts and on the hearts of men, would provide a yardstick by which to measure the deeds and misdeeds of politicians, a narrative through which to express our story, and a vision towards which we can walk together through the difficulties and uncertainties of self-government.
However, most attempts at Covenant-writing, so far, have done little to break out of narrow creedal moulds in search of broader consensus. Agreement on an explicit Covenant might be difficult to achieve, especially for a society in which the very existence of an independent state lies in the future. While I am strongly in favour of a national Covenant, I am very conscious of the need for such a Covenant to be more than just a party manifesto in disguise. Perhaps it would be advisable to start with the four values inscribed on the Mace of the Scottish Parliament: Wisdom, Justice, Compassion, Integrity, and work to build consensus from there.
I am also conscious of the fact that, in the case of a newly independent state, the decision-making and procedural aspects of the Constitution are primordial. A Constitution (even if just a thin, basic, generic and interim Constitution) should be in place from the outset.
The good news is, that while a Covenant must proceed from a long and all-encompassing national conversation, I expect that agreement on a Constitution might be easier to achieve, if only on cold, pragmatic grounds. Here is an example of a Constitution. Unlike the stirring words of a Covenant, it is dull, boring and technical. It also builds upon and consolidates existing institutions going back to the Scotland Act, 1997. It’s tried and tested, and it has the redeeming characteristic of enabling us to govern ourselves democratically without agreeing on everything, or even on very much.
I therefore propose that we first agree the constitutional ground-rules, based only on the thin, implicit covenant that Scotland is to be a democratic and pluralist society. This means that the Scottish Government, in seeking to establish a viable Scottish State, should take the lead in developing an interim Constitution – one that will enshrine our basic rights and democratic processes, and insulate the permanent judicial, administrative and scrutinising institutions of the State from the Government of the day.
With this in place, we can then, at our leisure, and under the security and stability of that Constitution, have a full discussion about values, ends, purposes and identities and attempt to find the common ground between competing creeds that might lead, in time, to a more explicitly covenantal instrument. This might be embodied in an amended Constitution, expressed in a preamble to that Constitution, or issued as a Declaration in parallel to it.
We each have our own ‘creed’. We might, given time and patience, be able to agree on a broadly acceptable Covenant, expressed in a form of words that unites and inspires. But we absolutely must, from day one of independence, have a Constitution which enables our differences to be worked out peacefully and democratically, so that we, with all our different values and interests, can live in freedom and harmony with one another. If we get this distinction right, I think we will not go far wrong.