As Scotland heads into an election, the constitutional question is at the heart of all parties’ campaigns. The future of Scotland and of the Union are at stake in what is primarily a trial of strength between pro-independence and anti-independence camps. Despite attempts to draw attention to pressing bread-and-butter issues, such as the economy, infrastructure, public services and pandemic response, these seem set to remain of only secondary concern as long as independence is unresolved.

Yet the oddity, in a political landscape dominated by a constitutional impasse, is that no one is really talking about the constitution. Both sides are obsessed with the ‘status question’ – whether Scotland should be an independent state or not – and have totally overlooked the ‘constitutional question’ of how that state is to be governed.

Those on the pro-independence side promise things that a new Scottish state might do but independence achieves nothing. The End London Rule mantra leaves the question ‘and replace it with what?’ dangerously unanswered.

If the case for independence rests on the notion that a Scottish state would better serve the common interests of the people of Scotland than the current British state, then what matters is the structure of the state itself: how the state is organised, the principles and values on which it is founded, how the rights of citizens will be defined and protected, how governments and parliaments will be chosen and how they will be held accountable, how good governance will be ensured.

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If there is one universal lesson from the experience of Commonwealth countries, it is that the success or failure of independence, in terms of delivering outcomes such as economic growth and improved public services, depends on the democratic quality and administrative effectiveness of the state that emerges from the transition.

The independence project is therefore necessarily a state-building project. In so far as the constitution is the legal and political foundation of the state, it is necessarily a constitution-building project. It is hard to take any independence movement seriously if fails to grasp that basic reality. It is not enough to do down what is there; you have to build better.

In the past, the SNP grasped this. Its 2002 draft constitution for an independent Scotland – although far from perfect and somewhat amateurish in drafting – would at least have been a reasonable interim platform on which a Scottish state could have constituted itself.

It enshrined important principles of parliamentary democracy and basic fundamental rights in ways that would have stabilised Scottish institutions in the tricky first few years of independence. Crucially, because it prescribed proportional representation and could only be amended by a three-fifths majority in Parliament followed by a national referendum, it would have provided reassurance to those who do not support the SNP that an independent Scotland would function democratically and not – as some fear – become a one-party state.

Since then, however, the SNP has for the most part maintained an eerie silence on the constitution, or else has offered only imprecise platitudes for fear that in being more specific it risks tying its own hands or alienating support. In part this stems from an obsession with getting and winning a referendum; but if Brexit has taught us anything, it is that winning a referendum is only the start – you’ve got to have a plan for what comes next.

HeraldScotland: A pro-independence rallyA pro-independence rally

In 2014 the Scottish Government issued only a hastily conceived draft interim constitution, almost laughable in its brevity. Saying nothing about the mechanics of institutional power, and being amendable by ordinary parliamentary majorities, it would not have offered any reassurance, but instead would offered a blank cheque of sovereign power to whoever was in power in Holyrood at the time of independence. That is not how to start a new country.

Of course, if we want to complain about the dangers of absolute power, we need look no further than Westminster. Recent scandals surrounding Prime Minister Boris Johnson are just the surface tendrils of the deep-rooted institutional malaise that afflicts the United Kingdom.

Many rightly complained about the crudely majoritarian, centralised, executive-dominated nature of the British system in its 20th century heyday but, for all its faults, it had a certain internal logic, and could be credibly defended in terms of its ability to provide responsible and responsive government.

Faced with Margaret Thatcher’s tendency to push that system to its very limits, there was by the end of her premiership widespread desire for reform. In 1988, Charter 88 published principles that became a manifesto for reformers. The Institute for Public Policy Research (IPPR) even published a draft constitution (in many ways, an excellent text, still worth reading for the way it turns principles into institutional rules).

Unfortunately, Tony Blair offered only piecemeal reforms. These destroyed the coherence of the old system, without going far enough to reach a new coherence. The UK slipped into what the political scientist Matthew Flinders described as ‘constitutional anomie’: a ‘debilitating condition’ characterised by ‘a lack of moral or social principles’.

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This has only intensified since Brexit. The British system of government, based on absolute parliamentary sovereignty limited only by the self-restraint and moral propriety of ‘good chaps’, making do and muddling through, has reached the limits of its usefulness. The challenge facing those who see a future for the UK is no longer simply to reform a system that basically works, but rebuild a system that is severely broken.

Those who wish to save the Union, no less than those dedicated to ending it, should be thinking in constitutional terms. The question is not, ‘Should Scotland be independent’, but ‘How best can we constitute a healthy liberal-democratic state, in which human rights, the rule of law and good government can be upheld?’

In attempting to answer that question, independence might well emerge as the best – or at least the easiest – outcome. Any constitutional re-foundation project far-reaching enough to renew the UK is also far-reaching enough to bust it apart. This is the tragedy of the UK. It cannot continue as it is. It cannot – without great difficulty – reform itself.

Dr Elliot Bulmer is a lecturer in Politics and International Relations at the University of Dundee and the author of Westminster and the World

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