After Brexit: Ideas for a Scottish Constitution

Dr Mark McNaught, Assistant Professor of Law, Philosophy, and US Civilization at the University of Rennes, argues that the prospect of new nation-states emerging out of post-Brexit UK means that we should re-start the debate about constitutions. He outlines a number of “basic principles” for going forward. Let us know what you agree and disagree with in the comments section below.

BREXIT has opened up the potential for the disintegration of the United Kingdom of Great Britain and Northern Ireland, with new nation-states to be forged in its place. Before becoming independent member-states within Europe, a United Ireland, an Independent Scotland, and whatever emerges out of the wreckage of Westminster must creatively collaborate on structuring new constitutions reflecting and worthy of their people.  Given that the UK has never had a written constitution, it would at the very least be an interesting academic exercise to consider how to create one based on tolerance and good will.  Here are some basic principles upon which a written constitution of an independent Scottish Republic could be based:

Equality before the law

  • All persons have the right to effective judicial protection in the exercise of their legitimate rights and interests, in no case without means of defence.
  • The entirety of the Scottish legal system, including penitentiaries and police forces, shall exclusively be in the public domain, except for contracts to private entities duly awarded, democratically approved, and transparently and verifiably applied and updated.  
  • All persons engaged with the justice system shall enjoy the following rights:

a) To be judged before an independent and impartial judicial institution whose jurisdiction shall be predetermined by law.

b) To defence counsel, either freely chosen or through aid provided by the government.

c) To be heard before the judges and courts, and to receive equitable and just treatment.

d) To a public trial with all guarantees, and to be judged within a reasonable time without undue delays.

e) To use all forms of appropriate and necessary evidence for one’s defence.

f) To be informed in a detailed and simple manner of the accusations against them, and of all relevant and material developments that occur in the course of the investigation.

g) To be able to examine the charges with sufficient time and attention before making statements, pleas, or other judicial motions.

h) To communicate with one’s defence counsel throughout the proceedings.

i) To the presumption of innocence until proven guilty in a final conviction.

  • No aristocratic or noble titles shall be recognized for any purpose. While the current bearers of these titles are free to call themselves whatever they prefer, they shall be treated equally under the law, and conferred no legal or pecuniary advantage unavailable to any other citizen.

All persons shall have the right

  • To the unfettered freedom of speech within the bounds of civil discourse.
  • To practice any religion and hold any belief system, including atheism.
  • To assemble and to form any type of organization for any legal purpose.
  • To marry or otherwise constitute a couple under full legal equality, regardless of sexual orientation or gender identity.
  • To their own privacy, image and honour, which shall be respected and protected in all spheres.
  • To effectively justiciable positive rights, including but not limited to health, education, welfare, and housing.
  • To the judicious use of euthanasia, for which the law shall regulate the conditions, requirements, and guarantees, according to the freely expressed will of the patient.
  • To physical and mental health care for family planning, pregnancy, childbirth, and termination of pregnancy as prescribed by law.
  • To not be discriminated against on the basis of sex, ethnicity, origin, language, beliefs, physical, mental or ideological diversity, age, genetic characteristics, membership in a national minority, sexual orientation or gender identity, or any other personal or social characteristic.
  • To petition the governments for redress of grievances, with legal mechanisms to assure a binding resolution. 
  • To participate in public affairs under equal conditions, either directly or through their validly-elected representatives
  • To run for office as a candidate for any political office under equal conditions and requirements established by law.
  • To participate in innovative and effective processes of drafting laws, either directly or through associations.
  • To instigate recall elections of elected officials and civil servants according to law.

Democracy and voting

  • All voting systems in all governments in Scotland shall be conducted electronically through provably accurate voting systems, all within the public domain and subject to scrutiny. The entire voting process shall be 100% transparent, any citizen shall be able to retroactively check that their vote was properly counted, and count the votes themselves.
  • There shall be automatic voter registration for all citizens from age 16 on up, which can never be revoked for any reason. All citizens shall be legally required to vote in all elections and referenda, and public resources shall be employed to assure that all participate and make an informed choice.
  • The elected electoral auditor and boards shall demonstrably assure 100% integrity of all voting systems, using the technology currently available.
  • Political parties must publicly disclose and continuously update the totality of their contributions, finances, and contracts from any source.
  • Elections and campaigns shall be publicly funded, with all public contracts disclosed, and resources demonstrably allocated equitably between the candidates and parties.
  • The constitution shall provide for national and local referenda in any circumscription on any issue, including but not limited to Scotland becoming a sovereign independent Republic, amending the constitution, and recalling any officeholder or civil servant, which shall be legally binding.

Accountability and transparency

  • All candidates and officeholders shall be required to declare and systematically update the totality of their assets, be they held in any form in Scotland, offshore, or anywhere else. This requirement can be extended to after they leave office. Violations or deliberate misrepresentation shall lead to immediate dismissal from office, or prosecution after they leave office.
  • To assure the high quality of law and public policy, all studies and public opinion surveys used by Scottish governments in the formulation of public policy shall be peer reviewed, or otherwise duly and transparently validated to assure methodological integrity.
  • The totality of all contracts and their terms consummated by Scottish governments shall be publicly and immediately disclosed. All local companies shall be allowed to submit bids in an open and transparent process. Companies who are or have been demonstrably malfeasant in fulfilling contracts anywhere shall be excluded from bidding.
  • All parliamentary or council sessions and meetings shall be livestreamed and archived on a public web channel, as well as political and citizen events of all types.

Land usage

  • All land, buildings, natural resources, and other assets shall be exclusively registered and taxed by the Scottish governments within their boundaries. Any land or building registered in any offshore or similar entity is not legally recognized for any purpose. 
  • Any land or assets in territorial waters not duly registered on the official registry shall become publicly owned, and profits shall be publicly distributed in a fully transparent and equitable manner.
  • For the public acquisition and equitable sharing of land currently owned by members of the democratically illegitimate and inherently corrupt feudal UK monarchic/aristocratic system, the validity and legitimacy of the initial historic acquisition and subsequent conduct of them and their forbearers shall be taken into consideration when evaluating any compensation, regardless of the time elapsed.

Environmental rights and duties

  • All persons have the right to live in a natural, healthy environment.
  • All persons, companies, and organizations have the responsibility to act without harming the natural environment.
  • All persons have the duty to make responsible use of common natural resources, from an ecological, economic, and social point of view. The productive sectors, including industry and agriculture, shall use common natural resources in a way that does not degrade the environment or hinder redevelopment in any way.
  • All Scottish governments have the duty to guarantee and maintain the high ecological quality of common natural resources, and the obligation to produce and disseminate proven and reliable information about environmental quality.
  • All techniques, chemicals, and ingredients used in all industrial and commercial activities, food, and pharmaceuticals and all other products present in Scotland must be transparent, publicly disclosed, and submitted to the relevant authority for evaluation whenever they may affect the natural environment, and their impact on the environment shall be evaluated on a permanent basis. Failure to do so shall result in exclusion from Scottish territory.
  • If there is environmental damage, those held legally responsible shall repair the damage and healthily regenerate the natural resources affected.
  • All Scottish governments shall protect, maintain, and improve the quality of the environment, fight against climate change, and conserve biodiversity and natural resources.

Scottish Governmental Services

  • All Scottish Governments shall have fully transparent oversight over all public services and welfare benefit systems operating within their boundaries, be they run publicly or privately. These include but are not limited to police, refuse collection, schools, infrastructure construction and repair, and public subsidized food distribution centres. All shall be administered and financed by the national, city and other governments, except for services contracted to private entities under specific publically disclosed terms, demonstrable breaches of which shall lead to cancellation. 
  • All contracts for municipal and welfare services shall be awarded in a fully public manner, with all contractual terms publicly available on the internet. Local referenda can be called to revoke contracts if these entities are failing to fulfill their mission, or working contrary to the public good. These services can then be administered by governments if it is determined that it is the best and most cost effective means to assure the overall well-being of the citizens. 

Labour Rights

  • Workers and employers have the right to form unions or associations and collectively bargain to defend their legitimate interests. The internal structure and their functioning shall be democratic and financed by their members.
  • All persons are free to belong to a union or business association and participate in their activities.
  • Union and business organizations shall perform their functions through consensus, participation, and cooperation.
  • Workers and/or their representatives shall be informed, consulted, and contribute to the management of the businesses.

Consumer Rights

  • Governments shall protect and defend consumers’ health, security, rights, and interests through effective measures determined by law.
  • All persons, in their capacity as consumers and users of goods and services, have the following rights:

a) To accurate, comprehensible, and complete information regarding the characteristics and prices of products, services, and contracts.

b) To guarantees and warranties for all for products, services, and contracts.

c) To the protection of their economic interests against abusive, negligent, of fraudulent conduct by any entity. 

  • Scottish governments shall establish and maintain the efficacy of legal mechanisms for consumer mediation and arbitration, and information about these mechanisms shall be broadly disseminated.
  • The repayment of any loan or credit in excess of a 15% annual percentage rate shall not be compelled.
  • Directly or through media organizations, consumers and users shall be informed and be heard regarding matters affecting them, under terms established by law.  

Education and Academic Freedom

  • There shall be a gradual yet measurable and attainable standardization of curriculum for all schools, public and private, and the ultimate extinction of religious sectarian differences.
  • Gaelic and English shall be co-official languages, and public resources shall be used to revivify the former in school curriculum and the broader Scottish culture.
  • All Scottish governments recognize the right to teach, to create institutions of learning, and to develop teaching systems and methods, provided fundamental rights are respected. 
  • A full quality education under equal conditions is guaranteed.
  • Authentic Scottish history and a full civic education shall be part of all secondary school curriculum.
  • Complete academic autonomy for universities is recognized, and Scottish governments shall take all measures necessary to prevent corporate or other interference in academic work.

Artistic, Media, and Literary Freedom

  • The freedom of artistic and literary creativity is guaranteed and protected.
  • All persons have the right to culture and to the development of their individual and collective creativity under equal conditions. 
  • Scottish governments shall facilitate citizens’ access to culture, to cultural goods and services, and to the cultural, archaeological, historical, industrial, and artistic patrimony of Scotland. 
  • The Scottish governments shall have the competence to evaluate all media outlets which cover Scottish affairs according to their demonstrable journalistic conduct, rate them, and deny press accreditation to those who do not meet basic standards of journalistic honesty, decency, accuracy, and integrity, based on criteria established by Scottish law.
  • The license fee currently funding the UK state broadcaster shall be reallocated to fund local media and cinema. The new Scottish Citizen Media Fund (SCMF) shall be financed by a progressive fee, and non-payment shall no longer be a criminal or civil offence.
  • Authentic Scottish media talent and administrative staff shall primarily be employed in all SCMF ventures.