1.6 Written Constitution (Interim and Permanent)

Would Scotland have a written constitution, and how would it be created?

The core question is foundational: would an independent Scotland have a written constitution, and how would it be created? The short answer is yes. An independent Scotland would have a written constitution. The process would be deliberately staged. An interim constitution would come into force on Independence Day to guarantee continuity of law, basic rights and the structure of the state. A permanent written constitution would then be prepared by a broadly based Constitutional Convention and put to the people in a referendum, ideally within three to five years of independence. This follows the approach outlined in recent Scottish Government papers and is standard practice for new or reforming states.

Independence would end the UK Parliament's supremacy over Scotland. The uncodified UK constitutional arrangements, modified by the Scotland Act 1998 and related legislation, would no longer supply the foundation of the state. A written constitution provides clear rules on the powers and limits of government and Parliament, entrenched protection of fundamental rights, a transparent statement of the state's basic structure, and a higher law against which ordinary legislation and executive action can be measured. The two-stage method—interim first, permanent later—avoids a constitutional vacuum on day one while ensuring that the long-term foundational rules are made by the people rather than imposed by the government of the day.

The main design choice is sequencing: stability and continuity on Independence Day; democratic ownership of the permanent text within a defined period thereafter. The main constraints are time, capacity and politics—preparing an interim text before Independence Day, running a credible Convention, and securing referendum approval for the permanent constitution—none of which is automatic. This section sets out the mechanism for each stage, the relationship to continuity of Parliament and law, and the limits of what can be fixed before the people decide. The 18–24 month working timeline to Independence Day provides a window to prepare the interim text. Continuity of the existing Scottish Parliament and Government, continuity of Scots law and the courts, and the negotiation red lines on sterlingisation, nuclear basing, free movement of people, debt allocation and pensions all presuppose a clear constitutional framework capable of holding legal authority from the first moment of independence. Precision about the staged method is therefore the constitutional expression of the continuity-first design that runs through the entire framework.

Current Position and Legal/Institutional Baseline

Scotland currently operates under the uncodified constitutional arrangements of the United Kingdom, heavily modified by the Scotland Act 1998 and subsequent legislation. Those arrangements rest ultimately on the sovereignty of the UK Parliament. The Scotland Act creates the Scottish Parliament and Government, defines their legislative and executive competence, and reserves certain matters—including the Union and the UK Parliament—to Westminster. The 2022 UK Supreme Court judgment confirmed that the Scottish Parliament cannot legislate for an independence referendum without a transfer of competence. Rights protections currently flow from the Human Rights Act 1998, which gives domestic effect to the European Convention on Human Rights, from common law, and from specific statutory provisions. The court system, Scots law, and the existing institutions of devolved government operate within this framework.

Independence removes the foundational role of UK parliamentary sovereignty in relation to Scotland. Continuing without a clear replacement would leave the powers of the Scottish Parliament and Government, the status of rights, the rules for amendment, and the basis for judicial review dependent on ordinary legislation and convention. That arrangement is workable in the short term only if an interim framework is explicit. It is not a durable design for a new state. The baseline therefore requires a deliberate constitutional replacement. The 2013 White Paper and subsequent Scottish Government papers, including the 2023 paper Creating a modern constitution for an independent Scotland, recognised the need for a written constitution and for a staged approach that prioritises continuity on day one. International practice in cases of peaceful constitutional founding or major reform—ranging from the post-independence arrangements of several Commonwealth states to the deliberate interim-to-permanent sequences adopted in other European transitions—supports the logic of stabilising first and deliberating later. The existing Scottish Parliament, Government, Scots law and court system supply the practical materials from which the interim constitution can be constructed. The permanent constitution is the later act of democratic ownership.

Mechanism and Delivery

The mechanism is a two-stage legal and political process. An interim constitution would take effect at midnight on Independence Day. Its purpose is strictly practical: to ensure continuity of law, the continued operation of existing institutions, and the protection of basic rights while a permanent constitution is prepared. It is a bridge, not the final destination. The interim text would be prepared before Independence Day through consultation and would be designed for clarity and stability rather than comprehensive innovation. Preparation would sit inside the transition timeline of 18–24 months, with contingency to 30–36 months if required: drafting, limited consultation, and passage of the necessary legislation so that the interim constitution is ready to take effect when sovereignty transfers. Dependence on UK agreement is limited. The interim constitution is primarily a Scottish legal instrument that gives effect to the independence settlement and ensures continuity of existing institutions and law. UK legislation may be needed to end the application of UK constitutional rules to Scotland; the content of the interim Scottish constitution is a Scottish responsibility.

The interim constitution would typically cover continuity of the Scottish Parliament and Scottish Government as the legislature and executive of the independent state; continuity of Scots law and the existing court system; basic human rights protections, drawing on the European Convention on Human Rights and existing domestic protections; the initial form of the state, including the position of Head of State during the interim period; rules for the exercise of the new sovereign powers until the permanent constitution is in place; and the process and timetable for creating the permanent constitution. Alignment with the continuity rules already set out for Parliament, Government, law and courts is deliberate. The interim text is the legal expression of those rules, not a separate experiment.

A Constitutional Convention would create the permanent constitution by law, under the process rules set out in the interim constitution. The Convention would be broadly based, drawing members from across Scottish society—elected representatives, civic organisations, legal and constitutional experts, and ordinary citizens selected to ensure diverse backgrounds and perspectives. The legislation establishing the Convention would set its precise composition and selection method. The Convention’s task would be to prepare a draft permanent constitution. Its work would be transparent, with opportunities for public engagement and consultation. Once the Convention completed its draft, the text would be put to the people of Scotland in a dedicated referendum. Approval in that referendum would bring the permanent constitution into force and replace the interim arrangements. Ideal timing would be within three to five years of Independence Day—long enough for proper deliberation and public involvement, short enough to avoid an extended period of provisional arrangements.

The permanent constitution would be expected to address, among other matters, the sovereignty of the people; the structure and powers of Parliament and Government; the role and selection of the Head of State; the independence of the judiciary and the court structure; fundamental rights and equality protections; the status of local government and island communities; amendment procedures requiring more than ordinary majorities; and the relationship between domestic law and international obligations. The Convention and the subsequent referendum would determine the final content, not the government of the day. That is the point of the process. This framework does not pre-write the permanent constitution. It specifies the method and the interim bridge. Where other sections take interim positions—for example, continuity of the monarchy at independence with a later democratic choice on Head of State—those positions are designed to fit inside the two-stage constitutional process rather than to pre-empt the Convention and referendum.

Continuity Design

Continuity is a design requirement. The interim constitution exists precisely to protect continuity of institutions, law, rights and basic state structure from the first moment of independence. Existing rights under the European Convention on Human Rights and domestic protections would continue. Scots law and the existing court system would continue. The Scottish Parliament and Scottish Government would continue as the independent state's legislature and executive. The continuity of law and institutions would preserve legal certainty for contracts, property, employment, and public-service entitlements. Any break in these continuities would have to be justified, negotiated and managed; the default is continuity.

The permanent constitution, once approved, would replace the interim arrangements under rules set by the people. Until that point, the interim text holds the line. If a first-draft permanent constitution fails to win referendum approval, the interim arrangements would remain in place, and a revised process would be required; it would not produce a collapse of the state or a vacuum of authority. The staged design absorbs that risk. Continuity of payment systems, sterlingisation arrangements, the nuclear basing agreement, free movement of people under an enhanced Common Travel Area-style model, and pensions administration all operate within the constitutional order established by the interim text. The constitution does not reopen the red lines; it supplies the legal framework within which those red lines are given effect and defended.

Constraints and Trade-offs

Legal constraints

The interim constitution must be given legal effect through Scottish legislation operating within the competence created by the independence settlement. UK legislation may be required to terminate the application of UK constitutional rules to Scotland. The permanent constitution depends on the Convention's legal establishment, a lawful referendum, and the rules for bringing the approved text into force. No one can impose a permanent constitution unilaterally without following the process set out in the interim text. Judicial review and the continuity of the court system provide the mechanism for enforcing the interim rules. The legal constraint is therefore the need for clear instruments at each stage and the limited but real dependence on UK legislation to complete the separation of constitutional foundations.

Fiscal constraints

Preparing the interim constitution sits within the transition costs already recognised in the 18–24 month timeline. The Constitutional Convention and the subsequent referendum carry additional one-off costs: secretariat, expert support, public engagement, and conducting the referendum itself. These costs sit inside the ordinary budget of the independent state and the medium-term fiscal plan. They are a real cost of constitutional founding, not a permanent programme. The fiscal constraint is the need to resource a credible process without diverting capacity from day-one operational priorities such as tax authority readiness, payment continuity and the initial monetary authority under sterlingisation. Honesty about the cost is part of credibility; the staged design allows the permanent process to be funded as a deliberate constitutional priority rather than as an afterthought.

Operational constraints

Drafting a clear interim text before Independence Day requires legal capacity, limited consultation and legislative time inside an already demanding transition. Running a broadly based Convention requires secretariat support, expert advice, public engagement infrastructure and a clear legal mandate. Conducting a referendum on the permanent text requires franchise rules, electoral administration and campaign regulation. Capacity is finite. Prioritising day-one operational essentials—payment systems, tax collection, financial regulation, basic diplomatic capacity—must not be compromised by the constitutional process. The operational constraint is the competition for skilled personnel and administrative attention. The design response is to draft the interim text early, keep interim content focused rather than exhaustive, and set a Convention timetable that begins after Independence Day, once core operational capacity is stabilised.

Political constraints

Political disagreement over the content of the permanent constitution is inevitable and is not a flaw in the design. Issues such as the future of the monarchy, the precise list and strength of rights, amendment thresholds, the status of local government and island communities, and the relationship between domestic law and international obligations will generate contestation. The Convention and referendum are the mechanisms for resolving that contestation. Pressure to pre-empt the Convention by fixing long-term rules in the interim text, or to extend the interim period indefinitely, is foreseeable. The political constraint is maintaining the integrity of the two-stage sequence against both maximalist demands for early entrenchment and maximalist demands for permanent provisional status. The interim constitution itself would set the process and timetable so that drift is constrained.

Time constraints

The interim constitution must be ready by Independence Day. That requirement sits inside the 18–24 month working timeline, with contingency to 30–36 months. The permanent constitution has an ideal window of three to five years after Independence Day. Both windows are demanding. External shocks, negotiation delays on the independence settlement, or capacity shortfalls can compress the time available for interim drafting or extend the period before a Convention can begin serious work. The time constraint therefore lies in the interaction between the transition timetable and the constitutional process timetable. Competence and democratic legitimacy take priority over artificial speed. An incomplete interim text would threaten continuity; an open-ended interim period without a clear process for the permanent text would risk permanent provisional status. The staged design with defined windows is the response.

Consistency with the Wider Framework

The written constitution process sits on top of continuity of Parliament, Government, Scots law and courts, and alongside the interim position on Head of State and the human rights framework. It is compatible with the negotiation red lines and with the 18–24 month timeline. Sterlingisation, fiscal rules, the nuclear basing agreement, the enhanced Common Travel Area-style movement framework, debt allocation, pensions continuity, day-one institutions and the Wealth Fund are policy settlements that operate within the constitutional order; they do not replace it. The interim constitution must be compatible with payment and service continuity and with the exercise of the new sovereign powers required to give effect to those settlements. It does not reopen them. The permanent constitution may entrench rights, structural rules and amendment procedures that constrain future governments; that is a feature of constitutionalism, not a conflict with the policy prospectus.

There is no tension with the continuity-first design. The interim stage exists precisely to protect continuity of institutions, law and basic rights while the permanent stage is prepared through deliberation and popular vote. The continuity of the existing Scottish Parliament and Government provides the democratic platform. Continuity of Scots law and the courts supplies the legal platform. The interim constitution states those continuities in higher-law form and provides the rules for exercising new powers until the people approve the permanent text. The non-EU orientation and the external relations required for recognition, treaty succession and the basing agreement all presuppose a clear constitutional foundation capable of supporting international legal personality from day one. The staged method delivers that foundation without sacrificing democratic ownership of the long-term rules.

Hardest Critiques and Direct Responses

Feasibility

The hardest practical critique is that preparing a robust interim constitution before Independence Day and then running a credible Convention and referendum within three to five years is unrealistically demanding given the parallel pressures of negotiation, institution-building and operational readiness. The response is direct. The interim text is deliberately limited in scope: continuity of institutions, law, basic rights, initial state form and the process for the permanent constitution. It is not an attempt at comprehensive innovation. Early drafting, focused content, and alignment with the continuity rules already set out for Parliament, Government, law, and courts make the interim stage feasible within the transition timeline. The Convention and referendum are demanding but consistent with international practice for major constitutional founding. Capacity and funding are real constraints; prioritisation and treating the permanent process as a deliberate constitutional priority funded in the medium-term fiscal plan address them. The staged design absorbs risk: if a first permanent draft fails to win approval, the interim arrangements remain in place. Feasibility turns on early preparation, limited interim ambition and a clear process rather than on the assumption that every element will proceed without friction.

Cost and fiscal burden

Critics will argue that the costs of interim preparation, a fully supported Convention and a dedicated referendum impose an unnecessary burden. The response is that these are one-off costs of constitutional founding. They sit inside the transition and the ordinary budget of the independent state. They are real and must be resourced. They are also small relative to the cost of a constitutional vacuum or of a permanent constitution imposed without popular approval and later contested. The fiscal rules and medium-term plan are designed to absorb the one-off costs of building a state, including its constitutional foundation. Honesty about the cost is part of credibility. The alternative of continuing indefinitely on ordinary legislation and convention would avoid the one-off cost at the price of leaving fundamental rules easy to change and rights unprotected by higher law.

Dependence on agreement

Dependence on UK legislation to terminate the application of UK constitutional rules to Scotland is limited but real. The content of the interim Scottish constitution is a Scottish responsibility. Transitional arrangements for rights protection, court continuity and institutional authority do not require ongoing UK consent once the independence settlement is in place. The permanent constitution process is entirely domestic. The response to residual dependence is early legal preparation and the recognition that UK legislation ending the application of UK constitutional rules is a necessary and limited step in any orderly separation, not an open-ended veto over Scotland’s constitutional choices. The framework treats that dependence as manageable within the negotiation of the independence settlement rather than as a barrier to a written Scottish constitution.

Transition risk

Transition risk arises if the interim text is incomplete, unclear or delayed, or if the permanent process drifts without a clear timetable. An incomplete interim constitution could leave continuity of law, rights or institutional authority open to challenge. Mitigation is early drafting, focus on continuity rather than novelty, and explicit alignment with the sections of this framework that already specify continuity of Parliament, Government, Scots law and courts. The requirement that the interim constitution itself set the process and timetable constrains drift in the permanent process. If a first permanent draft fails to win referendum approval, the interim arrangements remain in force; it does not create a vacuum. The staged design is the principal risk-management device. A single permanent constitution imposed on Independence Day would avoid referendum risk at the price of democratic legitimacy and would concentrate all constitutional controversy into the already crowded transition period. That alternative increases rather than reduces transition risk.

Alternatives (status quo and previous proposals)

Continuing without a written constitution, on ordinary legislation and convention, would leave fundamental rules easy to change by ordinary majority and would forgo entrenched rights and clear higher law. That alternative is rejected as a durable design for a new state. A single permanent constitution brought into force on Independence Day would require the government of the day, or a pre-independence process, to fix the long-term rules without a post-independence Convention and referendum. It is faster and less democratic. That alternative is rejected in favour of the two-stage method. An open-ended interim period without a deadline or clear process for the permanent constitution would risk permanent provisional status. The three-to-five-year ideal window is a planning target; the interim constitution would itself set the process and timetable so that drift is constrained. Independence itself ends the status quo of continued UK constitutional arrangements. The framework adopts a method that provides immediate stability and subsequent democratic ownership, rather than alternatives that either leave the foundation unclear or sacrifice popular approval for speed.

Political and public credibility

The claim most likely to be called unrealistic is that a Constitutional Convention will produce a text capable of passing a referendum without fragmenting over contentious issues such as the monarchy, the strength of rights protections, amendment rules or the status of local government and island communities. The precise answer is that the interim constitution already provides stability; the Convention’s job is to deliberate and draft; the referendum decides. If a first draft fails to win approval, the interim arrangements would remain in place, and a revised process would be required—not a collapse of the state. The staged design absorbs that risk. A single-stage constitution imposed on Independence Day by the government of the day would avoid referendum risk at the price of democratic legitimacy. This framework rejects that trade-off. Credibility rests on a transparent, broadly based process ultimately subject to popular vote, not on the pretence that constitutional disagreement can be eliminated in advance. The interim stage protects continuity; the permanent stage ensures ownership. That division of labour underpins the political and public credibility of an independent Scotland's constitutional order.

Position Summarised

Scotland would have a written constitution. An interim constitution would come into force on Independence Day to secure continuity of institutions, law and basic rights. A permanent constitution would then be drafted by a broadly based Constitutional Convention and submitted to the people in a referendum, ideally within three to five years. This method provides immediate stability while ensuring that the people of Scotland themselves make the long-term foundational rules of the independent state. The interim text would be prepared before Independence Day. It would focus on continuity rather than innovation: continuity of the Scottish Parliament and Government, continuity of Scots law and the courts, basic rights protections drawing on the European Convention on Human Rights, the initial form of the state including Head of State for the interim period, rules for the exercise of new sovereign powers, and the process for creating the permanent constitution. The Convention and the referendum would determine the permanent text, not the government of the day. Cost, capacity and political disagreement over content are real constraints; the staged design absorbs them by keeping the state functional under interim rules until a permanent text wins popular approval. It is practical, democratic and consistent with the continuity-first principles that run through the wider position.

Conclusion

An independent Scotland would have a written constitution, introduced in two stages. An interim constitution would take effect on Independence Day to guarantee continuity of the Scottish Parliament and Government, continuity of Scots law and the courts, basic rights protections, the initial form of the state including Head of State for the interim period, and the process for creating the permanent constitution. A broadly based Constitutional Convention would prepare a permanent constitution, which the people would approve in a referendum, ideally within three to five years. The interim stage prevents a constitutional vacuum and gives legal form to the continuity of institutions and law already set out in this framework. The permanent stage ensures that the government of the day does not impose the long-term rules, but that deliberation and a popular vote do. Alternatives—no written constitution, or a single text imposed at independence—either leave the foundation unclear or sacrifice democratic ownership for speed. This framework prioritises stability and democratic ownership. This constitutional method matches the overall prospectus's continuity-first, rules-based design. Every subsequent section of this series operates within the constitutional order established by the interim text and ultimately governed by the permanent text the people approve. This section states how that order would be created and why the staged method is required.

This analysis forms part of People’s Future Scotland: The Independence Debate, a series examining the practical, legal and institutional questions that would arise in any move to independence. Each section is designed to withstand scrutiny by setting out mechanisms, constraints and continuity requirements with equal clarity. The series proceeds from the premise that a decision of this magnitude requires a process and a prospectus that both supporters and opponents can recognise as serious.