IN 1957, when my father was still in short trousers, “Scottish businessman and patriot” Roland E Muirhead began working on a draft constitution for an independent Scotland. This initiative led to the convening, on April 21, 1962, of a gathering of 108 worthies, calling themselves the Scottish Provisional Constituent Assembly, in the George Adam’s Ballroom, Edinburgh.
Supported by Professor Andrew Dewar Gibb, Dr Victor S MacKinnon and “the finest legal brains in Scotland”, the Scottish Provisional Constituent Assembly worked for two years on the draft constitution, which was endorsed by them in 1964. They consulted the public and the media as they went along, in an attempt to gain traction and build legitimacy for the text.
Clearly, despite their best efforts, the Scottish Provisional Constituent Assembly did not succeed in their ultimate objective – the text they produced is a historical footnote, not the supreme law of Scotland today. Nevertheless, the document is a fascinating one, and well worth looking into.
I discovered this forgotten draft at an early stage of my PhD research. The text was published as a thin – now long out of print – paperback in 1993. Edited by Robbie Moffat and illustrated by Matthew McKenna, with a tantalisingly short introduction by John Murphy, it presented the text of this draft constitution for Scotland alongside simple line drawings illustrating its various articles.
In order to preserve this text for posterity and to make it available to a wider public, I obtained permission from the publisher to include it as an appendix to my 2016 book Constituting Scotland: The Scottish National Movement And The Westminster Model (Edinburgh University Press).
What can we discern, by looking at the words on the page, about what these pioneering Scottish constitution-wranglers were thinking? We know that a Committee of Articles was appointed to “examine the constitutions of the world” – but which ones, in particular, were they looking at, and why?
The dates are important here. 1957 to 1964 was right in the midst of post-war decolonisation. Westminster Export Model constitutions were flying off the press as fast as the constitution drafters could cut out “Jamaica” and insert “Malta” into their well used constitutional templates. All these British-influenced constitutions look remarkably similar; although tailored in detail to the particular needs and circumstances of each country, they represent an attempt to capture the essence of the British system of parliamentary democracy as it operated in the middle of the 20th century and put it down in writing.
Anyone wanting to draft a constitution for Scotland at that time, with reasonable certainty that the constitution would work, and not badly, could easily have looked to these Commonwealth examples for inspiration. If they did that, it does not show in the Scottish Provisional Constituent Assembly draft.
Instead, one finds curious parallels with Scandinavian constitutions. For example, to enable the opposition to draw public attention to a bill, and to prevent parliamentary “ambushes”, where a bill is driven through the chamber without adequate scrutiny, there is a mechanism (article 72) enabling two-fifths of the parliamentarians to delay the third reading of a bill by two weeks which has evidently been lifted from Article 41 of the Danish Constitution. Article 63 of the Scottish Provisional Constituent Assembly draft, which refers to parliament’s powers, clearly looks as if it has been cribbed from Article 75 of the Constitution of Norway.
These mechanical details of constitutional design, dull and obscure though they might be, represent something greater than the sum of their parts: they show an intention not merely to establish in Scotland a “Westminster-on-Forth”, but to develop a different type of constitutional order – one that is more rooted in people, place and principles, that reflects a kinder gentler democracy, more sensible and serious politics, and a more peaceful and co-operative society.
Many in Scotland have Nordic aspirations. Amidst praise for Norway’s oil fund or Sweden’s social security system, it is worth pausing to consider how these countries can have “nice things” while we can’t. The answer is, at root, constitutional. Their states are designed, at the constitutional level, to serve ordinary people in a very ordinary way.
After all, if oil made a country flourish, Nigeria would be paradise, as would Scotland. Oil is nothing. Good government in the public interest is everything. That’s the key to “keeping up with the Johansens”.
Today – May 17 – is Norwegian constitution day. In celebrating the constitution of 1814, rather than the independence that was finally won 91 years later, the Norwegians acknowledge that the constitution is not only the guardian of their national existence but also the foundation of the freedom, good government and prosperity they enjoy. Their annual traditionally garbed, flag-waving, parading-through-streets manifestation of patriotism is not directed towards nationalism, but towards liberal-democratic parliamentary constitutionalism.
Seems braw to me.
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