A Constitution for the Common Good E-Book

W. Elliot Bulmer

• Herausgeber: Luath Press
• Kategorie: Geisteswissenschaft
• Serie: Viewpoints
• Sprache: Englisch

Seitenzahl: 591

Veröffentlichungsjahr: 2024

Beschreibung

If Scotland has voted YES on 18 September, how can a written Constitution be good for the people of Scotland? If Scotland has voted NO, how could a new Constitution protect and enhance Scottish democracy within a restructured UK? Whether YES or NO, a reconstituted Scotland is possible and good for all its citizens. Nearly every democracy in the world is built upon a written constitution, and constitutions have been at the core of citizens' demands for better governance in places as disparate as Kenya, Tunisia and Ukraine. With the Scottish National Party promising a written constitution in the event of a YES vote and other parties suggesting other possible options for constitutional change in the event of a NO vote, constitutional change looks certain to remain central to the political agenda in Scotland for some time to come. But what is a constitution for? Is it a defensive charter to protect the basic structures of democratic government, or is it a transformative covenant for a better society? How can the Constitution sustain democracy and promote ethical politics while at the same time recognising and accommodating differences in society? What difference would a good Constitution make to the poor? How can the Constitution help ensure that the common good of the citizenry prevails over private vested interests? In addressing these questions, this book sets out a vision for how Scotland could reconstitute itself. It emphasises the connection between the constitution, democracy and the common good, arguing that democratic self-government is the true prize, regardless of the relationship of Scotland to the rest of the UK. This book not only makes a vital contribution to Scotland's current and on-going constitutional debate, whatever the outcome in September 2014, but also engages with fundamental questions of constitutionalism and democracy that are of enduring relevance to both citizens and scholars around the world.

Leseprobe

ELLIOT BULMER, after graduating with an MA in Arabic and Politics from the University of Edinburgh, was commissioned as a Logistics Officer in the Royal Navy and served in Iraq as part of a PSYOPS unit. After leaving the Navy, he completed a PhD in Politics at the University of Glasgow while working as Research Director of the Constitutional Commission, a Scottish charitable organisation for constitutional education and research. He now works for the Constitution Building Programme of the International Institute for Democracy and Electoral Assistance in The Hague, Netherlands. He is the author of A Model Constitution for Scotland: Making Democracy Work in an Independent State (Edinburgh: Luath Press, 2011) and several articles on constitutional subjects in peer-reviewed academic journals, as well as being a frequent contributor to Scotland’s constitutional debate in print and online.

Luath Press is an independently owned and managed book publishing company based in Scotland, and is not aligned to any political party or grouping. Viewpoints is an occasional series exploring issues of current and future relevance. All opinions is this book are the sole opinions of the author and do not represent the position of International IDEA, the Constitutional Commission or any other person or organisation.

First published 2014

New Edition 2015

ISBN: 978-1-910324-33-2

Typeset in 11 point Sabon by 3btype.com

The author’s right to be identified as author of this work under the Copyright, Designs and Patents Act 1988 has been asserted.

© W. Elliot Bulmer

How splendid and honourable it is to mediate on government and public administration, on which our well-being, our health and our life depend.

FRANCESCO GUICCIARDINI,

Dialogue on the Government of Florence, 1527

For some men falsely persuading themselves that bad governments are advantageous to them, as most conducing to gratify their ambition, avarice, and luxury, set themselves with the utmost art and violence to procure their establishment: and by such men almost the whole world has been trampled underfoot, and subjected to tyranny, for want of understanding by what means and methods they were enslaved. For though mankind take great care and pains to instruct themselves in other arts and sciences, yet very few apply themselves to consider the nature of government, an enquiry so useful and necessary both to magistrate and people. Nay, in most countries the arts of state being altogether directed either to enslave the people, or to keep them under slavery; it is become almost everywhere a crime to reason about matters of government. But if men would bestow a small part of the time and application which they throw away upon curious but useless studies, or endless gaming, in perusing those excellent rules and examples of government which the ancients have left us, they would soon be enabled to discover all such abuses and corruptions as tend to the ruin of public societies. It is therefore very strange that they should think study and knowledge necessary in everything they go about, except in the noblest and most useful of all applications, the art of government.

ANDREW FLETCHER of Saltoun,

A Discourse of Government With Relation to Militias, 1698

Acknowledgements

Writing a book is a solitary endeavour, but producing a book – which involves turning the raw text into something publishable and readable – is always a joint effort. I particularly wish to thank: Dr Craig MacAngus and Dr Peter Lynch, both of the University of Stirling, for reviewing drafts and providing valuable feedback; John Drummond, of the Constitutional Commission, for his unstinting support; my parents, for their continued encouragement; Gavin MacDougall and the team at Luath Press, for their efforts in ensuring a swift turn-around from manuscript to finished book; my colleagues at International IDEA, especially Sumit Bisarya and Professor Tom Ginsburg; and lastly but most importantly my wife Eva who has fulfilled the duties of scribe, editor, reference-checker and caterer-in-chief with good cheer and patience.

Contents

Acknowledgements

Preface to the Second Edition

Introduction

CHAPTER ONE

Does the Constitution still matter?

iIndependence, Democracy and the Constitution

iiIndependence, Sovereignty and Folkric

iiiThe Constitutional Debate before the Independence Referendum

ivConstitutionalism without Independence?

a A Federal United Kingdom

b A New Treaty of Union

c Home Rule

CHAPTER TWO

How can Constitutions promote the common good?

iThe Common Good as the Purpose of the State

iiWhat is the Common Good?

iiiCommon Good, Pluralism and Pre-commitment

ivPolitical Liberty as a Common Good

CHAPTER THREE

How prescriptive should the Constitution be?

iThe Case for Procedural Constitutionalism

iiThe Limits of Prescriptive Constitutionalism

iiiThe Relationship between Procedural and Prescriptive Elements

CHAPTER FOUR

How could the Constitution strengthen democracy?

iDirect Democracy

iiRepresentation and Inclusiveness

iiiSecond Chamber: Senate or Tribunate?

ivLocal Democracy

vDemocratising Parties

CHAPTER FIVE

How can the Constitution promote good governance and accountability?

iParliamentary Scrutiny and Fourth Branch Institutions

iiRecall and Popular Dissolution

iiiPrime Ministerial Term Limits

ivGuarding the Guardians: Supervision of the Military and Security Services

CHAPTER SIX

How can the Constitution reflect our values and identities?

iThe Preamble and Para-Consitutional Covenants

iiReligion and State

iiiMonarchy and National Identity

CHAPTER SEVEN

How can the Constitution help us to achieve social justice, tackle poverty and reduce inequality?

iSocial and Economic Rights

iiJudicial or Political Enforcement

iiiBeyond Rights: Empowering the People

CHAPTER EIGHT

How can the Constitution promote public ethics?

iThe need for Good Citizenship

iiEducation for Citizenship

iiiPrinciples of Public Life and Codes of Conduct

ivPublic Honours

CHAPTER NINE

How can we build a new constitutional settlement?

iDoes process matter?

iiStages of the process

iiiPossible next steps

APPENDICES

APPENDIX A A Constitution for an Independent Scotland

APPENDIX B ‘A New Treaty of Union’

APPENDIX C A Home Rule and Full Fiscal Autonomy Settlement for Scotland

APPENDIX D A Constitution for a Federal United Kingdom

Endnotes

Preface to the Second Edition

THE FIRST EDITION of this book appeared in August 2014, shortly before the referendum on Scottish independence. This second edition appears after the May 2015 UK general election, in which the Scottish National Party achieved nearly a clean sweep of Scottish seats (56 out of 59, leaving Labour, the Liberal Democrats and the Tories with just one seat apiece). Much has changed over the intervening period. As the referendum result was to many a great disappointment, so the general election result was a sign of hope. It was a sign that all was not lost, that Scotland has emerged from the last few years stronger and more self-confident, and that the constitutional question is far from settled.

The general election result is a sign, above all, that Scotland can no longer be dealt with in the old colonial way, with a mild sop here and a messy fudge there. While the Tory establishment in London may wish to go back to the business of oligarchy as usual, the people of Scotland have sent a clear warning signal: ‘We stayed in the Union on the promise of radical and fundamental change; deliver it, quickly, or we will leave’. Even the most arrogant, blinkered and conceited of British Prime Ministers cannot fail to hear that warning. Whether they have the sense to heed it, of course, is another matter.

It is clear, too, that the activism and engagement sparked by the independence referendum has not dissipated. Membership of the Scottish National Party tripled in the few weeks following the vote, whilst membership of the Scottish Green Party doubled. The networks, platforms, media channels and organisations created by the referendum campaign have continued to exist. People are ‘not going back to their sofas’, as Robin McAlpine, leader of the Common Weal campaign, put it.

Independence is off the agenda for now, but it might not remain so for long. If Westminster fails to change its ways, and if it proves itself incapable of accommodating a free and autonomous Scotland within a reformed Union, then one can imagine various scenarios in which the demand for a second referendum on independence – or on a package of constitutional measures very close to independence – may become irresistible. Scotland’s First Minister, Nicola Sturgeon, has repeatedly stated that a vote for the SNP in the general election was not a vote for independence, and that there are no plans at present to hold a second independence referendum. This comes, however, with two very important caveats: firstly, that the SNP manifesto for the 2016 Scottish Parliament election is yet to be written, and that manifesto might well outline conditions under which another independence referendum would be held; and secondly, that a substantial change in circumstances – such as a vote on leaving the European Union – might force a second independence referendum rather sooner than many had anticipated.

Many of those who voted No in September 2014 did so only on a conditional basis, taking last minute interventions by former Prime Minister Gordon Brown as an indication that a No vote would guarantee much greater autonomy for Scotland within a radically reformed Union. A ‘solemn vow’ to this effect was publicly given by Brown and affirmed by the leaders of the Conservatives, Labour Party and Liberal Democrats. Thus the referendum can be interpreted not only as a rejection, for the time being, of full independence, but also as an endorsement of substantial constitutional change within the UK. Even if a second referendum on independence is not forthcoming, the deep constitutional problems facing Scotland and the rest of the UK are not going to go away. Scotland is still unequally yoked to an ill-constituted fading imperial state, in which dissatisfaction is still growing and tensions between different countries and classes are increasing. An acceptable and democratic solution to this problem must be found before unacceptable solutions, of a regressive and anti-democratic nature, are imposed upon us.

The SNP group in the Westminster Parliament, in conjunction with the Scottish Government, should push for the full implementation of the vow, taking advantage of the vow to claim the largest sphere of autonomy possible short of full independence. Now is the time to respond to the Scottish public’s endorsement of fundamental change and to articulate a viable constitutional position that meets Scottish aspirations. There is an opportunity to capture the public imagination, to set the terms of debate, and to build a broad consensus around an intermediate position between independence and devolution that can unite both disappointed Yes voters and the broad swathes of No voters who still want real change. This intermediate position would not be merely a transfer of limited powers from one government and parliament to another, as envisaged by the lukewarm proposals of the Smith Commission, but a more radical reconfiguration of the state.

This second edition therefore contains a new section charting out three possible models of constitutional change that Scotland could pursue within the United Kingdom: a federal model, in which the UK would be reconstituted as an equal union of four nation states; a new Treaty of Union, which would provide for a bi-lateral relationship between Scotland and the rest of the UK, and a ‘Home Rule’ arrangement that would leave the central institutions of the UK relatively unchanged, but greatly diminish their influence and control over Scotland. Which track we take depends partly on the willingness of Westminster to give ground and partly on the extent to which the other parts of the UK wish to travel with us, but each of these solutions could in principle deliver the secure and substantial autonomy for Scotland promised in the vow. This means that Scotland could be fully internally self-governing and self-financing, and have a constitutionally secured position that is not subject to the will of Westminster, while remaining part of the UK for the purposes of foreign affairs and defence, and while sharing a limited range of powers in relation to passports, citizenship, the currency and similar matters.

The questions that were so energising and exciting before the referendum (What sort of country would we like to be? What sort of democracy do we need? How can we get there?) are too important to be forgotten and swallowed up in unedifying partisan tussles over a pinch of stamp duty here or a peck of income tax there. In taking this constitutional agenda forward, whether in an independent Scotland or in an autonomous Scotland within a reformed and ‘loosely United’ Kingdom, we (by which I mean all who care about the freedom and well-being of Scotland, whether for or against independence) must take care to ensure that democratic constitutional change does not take a back seat to technocratic tinkering. In particular, we must not allow ourselves, or our political representatives, to become so embroiled in petty wrangling about ‘more powers’ that we fail to engage in a deeper discussion about values and principles, or about improving democratic processes and safeguarding fundamental rights.

Introduction

IT IS NOW NEARLY four years since my first book, A Model Constitution for Scotland (2011),1 was published. A Model Constitution stemmed from a belief that the Scottish constitutional debate needed to be refocused, away from the ‘status question’ of Scotland’s relationship with the rest of the United Kingdom, and towards questions of good governance, democratic participation, citizens’ rights and public values. I argued that independence alone would not deliver its promised benefits without a democratic constitutional foundation and that not ‘mere independence’, but the much nobler ideal of a ‘free and civic way of life’,2 should be, and indeed long has been, the ultimate aim of the Scottish national movement.

This perspective is needed now, in the wake of the referendum, more than ever before. Since September 2014 there has been much talk of ‘new powers’, but almost no discussion of the constitutional structures within which those powers might sit, or of the constitutional principles that might guide and govern their proper use. The change that was worth seeking before the referendum was not simply a transfer of power from one Parliament to another; rather, it was the creation of a new and more democratic constitutional settlement for Scotland. In the post-referendum environment, when various forms of Home Rule or federalism are reappearing on the medium-term agenda, that desire for real constitutional change is as relevant and as challenging as ever.

I also sought to show that freedom cannot simply be defined in terms of economic freedom, or individual freedom to act without responsibility or restraint; such debased notions of freedom belong to tyrants, oligarchs and outlaws, not to citizens. Freedom in its civic, democratic sense necessarily includes active membership in a self-governing polity through which we the people deliberate upon and try to discern the common good. In other words, freedom is defined in terms of ‘democratic voice’, not just ‘market choice’. Democratic citizenship is a communal, not an individualistic, preoccupation. It is always intimately and intrinsically connected to a concern for social justice, for the removal of gross inequalities in material condition and for the promotion of a good, flourishing life.

Aside from making these general, somewhat normative points, my intention in writing A Model Constitution was a modest one. A Model Constitution never claimed to be the final word on the subject of what form a Constitution for an independent Scotland should take. I simply wished to help inform public decisions by showing readers, most of whom have no experience of life under a written Constitution, and may never have even seen one,a what a workable, achievable and broadly acceptable Constitution for Scotland might look like. I sought neither to predict nor to prescribe any particular set of constitutional outcomes, but only to illustrate general principles by way of a ‘worked example’ in order to encourage more informed public debate and more committed public action. Judging by the comments I have received from readers and from my experience of attending public meetings in my capacity as Research Director of the Constitutional Commission, the book fulfilled these intentions with some success.

Over the last few years, I have had opportunities to discuss A Model Constitution with Scottish Cabinet ministers, members of the Scottish Parliament (from several parties), civil servants, academics in the fields of politics and public law, and members of leading civil society organisations. I have also presented the Model Constitution at many public meetings, and have learnt much from listening to citizens who, although they might have previously had no particular interest in constitutional affairs, have come to recognise that a Constitution is key to realising their desire to live in a better Scotland. More recently, through my work with the International Institute for Democracy and Electoral Assistance, I have been able to engage with people working on constitution-building processes in emerging democracies. These experiences have continued to refine my thinking about what sort of Constitution would be needed in Scotland, as well as challenging some of my previous assumptions on the boundaries of constitutional possibility.

A Model Constitution concerned itself mainly with the institutional mechanics of a Constitution for Scotland. It discussed how to elect the First Minister, the powers of the Presiding Officer, the appointment of judges, the workings of the electoral system, the composition of the Electoral Commission, the process of enacting legislation, the rules concerning the dissolution of Parliament, different types of referendum, and other institutional matters concerning the form and structures of government. However, a number of difficult and controversial substantive issues (such as the relation of the state to religion, or the statement of values and principles in a preamble) were omitted, or covered only briefly. In some cases this omission was due to constraints of space and time, in others because I had not yet come to fully recognise their salience.

With increasing calls for a United Kingdom-wide constitutional settlement,a and Scotland’s place within or relationship to the United Kingdom still very much in question after the independence referendum, now is an opportune time to reflect self-critically upon A Model Constitution, to update the reader on recent developments, and also to discuss questions of content, context and process that were not fully addressed in the earlier work.

This book takes a step back from institutional engineering to discuss the cultural, political and social considerations of constitutionalism. It marks a shift in emphasis from the letter of the Constitution to the spirit. Whereas A Model Constitution focused on the dry bones of ‘rules and rights’ in the Constitution, as they might feature in the work of politicians, civil servants or lawyers, this book also shows how the living flesh of the Constitution – reflecting our values, reinforcing our aspirations, and resonating in our hearts – can be relevant to the everyday lives of ordinary citizens.

This book is written for four groups of people. Firstly, it is addressed to supporters of independence or substantially increased autonomy for Scotland who are unconvinced by, or uncommitted to, the principle of a written Constitution. It hopes to convince these people that the promise of ‘more powers’ would not deliver their expected social, political, economic and cultural gains without a commitment to democracy, human rights and good governance, underpinned by a strong Constitution. Secondly, it is addressed to those who wish to see progressive political change, notably in the areas of constitutional and institutional reform, but who see Britain through a Westminster-centric lens; I wish to show this group that, given the chronic structural failures of democracy the United Kingdom, a bit more devolution here and there is not going to do the job. Thirdly, I have in mind those who are already committed to independence or substantial autonomy and to a new constitutional settlement, and who wish to explore the ways and means of constitution-building in more detail. I hope that this group will benefit from the expanded treatment of the issues of substance and process that were not covered, or were only briefly discussed, in A Model Constitution. Finally, this book also hopes to make a modest theoretical contribution to public and academic discussion of constitutions, in terms of the relation of ‘charter’ to ‘covenant’, that will be of interest to people outside Scotland and the United Kingdom, whatever trajectory we take.

Going beyond the institutional focus of my earlier work, this book considers the wider aims, purposes, nature and scope of a Constitution, particularly as it relates to democracy, pluralism and the common good. The central problems of authoritarian backsliding, incumbent manipulation and corruption that any good Constitution must guard against, as well as the issues of identity, values and public ethics that any Constitution is required to address, will continue to face us whether we carry a Scottish or a British passport. The themes and ideas discussed in the book are therefore of direct and immediate relevance to Scottish citizens, and to people throughout the United Kingdom, as we go about the difficult process of forging a new constitutional order for ourselves, whether this happens to be in the context of an independent Scotland, in an autonomous Scotland trying to protect and improve itself through constitutional guarantees, or in a United Kingdom that finds the courage and ingenuity needed to reconstitute itself as a federation of free and equal nations.

Much of this book is devoted to the problem of how to reflect common values and promote the common good while preserving the diversity of a free and open society. It argues for a ‘civic constitutionalism’. This differs from the liberal tradition in recognising that there is a ‘common good’ in society, and that a democratic state is required to play an active, positive role in the attainment of the common good. However, it does not accept the illiberal and utopian notion that there is any single, abstract, and universally evident expression of the common good to be discovered and imposed by a virtuous minority or by an arcane priesthood of ideological visionaries. Instead, the common good is recognised as existing in a contingent and ephemeral way; it is discovered as a result of pragmatic agreements arising from political participation, deliberation and negotiation. This applies: (i) generally, to the common good of society as a whole, which is the underlying aim of the common weal; and (ii) specifically, in relation to each policy decision.

If freedom from tyranny and oppression is essential to human flourishing, and if the common good is to be discovered and sustained through public deliberation, it follows that there must be freedom of conscience, association, discussion and political action, and that no one person, nor any particular group of people, should hold preponderant power in the state. The primary requirement of a good Constitution, then, is that it should protect fundamental human rights and democratic processes, and thus facilitate an open, pluralistic, deliberative politics under the rule of law. Yet this is not the only requirement. As well as being a legal charter, through which our rights are protected and under which our public institutions operate, a Constitution also embodies a national covenant. Without eroding or denying our many differences, it declares the promises that we make to one another as fellow citizens, declares the commonly agreed standards that we are determined to uphold in our public life, and so expresses our commitment not only to the rights and institutions, but also to the values and mores of the res publica.

The purpose of the Constitution, according to this understanding, is not to impose one single view of the common good on the whole of society (in contrast, for example, to the ideological constitutions of Soviet republics, or the theological constitutions of Islamic republics), but to reflect deep and enduring public agreements about the common good (its ‘covenantal’ function) while ‘holding the ring’ for public decision-making on how to resolve particular policy decisions (its ‘charter’ function).This requires a robust constitutional structure that: (i) protects against the manipulation of the rules by incumbents, guards against authoritarian tendencies, protects the rights of dissent and contestation through well-defended civil liberties, promotes good governance, defines the ethical standards of a healthy public life, and (ii) articulates the shared common values and the baselines of human flourishing which enhance the well-being of all citizens. This argument, together with its consequences for constitutional design, is a recurring theme of this book.

Chapter One explains why the constitutional question was so integral to the Scottish independence debate and why it remains integral to the debate about Scotland’s future, whatever the extent of our relationship to the rest of the United Kingdom. ‘More powers’ or even ‘full powers’ for a Scottish Parliament would be of limited use or benefit if not backed by a clear commitment to democracy, good governance, human rights and public values. A newly added section discusses approaches to constitutionalism in a sovereign and self-governing but non-independent Scotland, either through a federal United Kingdom or by means of a new Treaty of Union or an autonomous ‘Home Rule’ Constitution for Scotland.

Chapter Two roots the constitutional project in a commitment to the common good. It makes the case for an open and pluralist democratic politics, in which various competing concepts of the common good can be expressed. This need not, however, necessarily result in a blind, purposeless ‘constitution without values’. On the contrary, an open, pluralist and democratic view of the common good – as something to be discovered and determined through public deliberation – requires citizens to strive for a broad consensus not only on basic rights and ground rules, but also on the ethics, norms and values which will shape public life and enable the common good to be realised.

Chapter Three considers the extent, nature and purpose of the Constitution. Two contrasting elements of, or approaches to, a Constitution are presented: the procedural ‘charter’ and the directive or prescriptive ‘covenant’. The term ‘charter’ refers to the set of rights and rules that structure political activity (‘the rules of the state’), whereas the term ‘covenant’ refers to the ethical statements and values that shape politics (‘the spirit of the country’). These distinctions cut across typical institutional categorisations, such as whether a state is unitary or federal, has one or two legislative chambers, uses a proportional or majoritarian electoral system, or has a prime ministerial or presidential executive. In exploring the distinction between these two constitutional approaches and understanding the connection between them, many theoretical and practical problems of constitutional design can be clarified. While both approaches are integral to the whole – a Constitution is both ‘charter’ and ‘covenant’, specific ‘charter elements’ and ‘covenant elements’ can be expressed and enforced in different ways, and to different extents, on a pragmatic basis, depending on the needs and aspirations of each society at a given time.

Chapters Four to Eight discuss the application of these general principles to the institutional and substantive provisions of a Constitution, whether for an independent Scotland, for an autonomous Scotland within the shell-state of the United Kingdom, or for a federal United Kingdom. This discussion includes questions of public participation and democratic quality (Chapter Four), accountability mechanisms (Chapter Five), issues of identity, religion and nationhood (Chapter Six), social and economic justice (Chapter Seven), and public ethics (Chapter Eight).

Finally, Chapter Nine considers the constitution building process. It charts a potential roadmap towards the establishment of a new constitutional order for Scotland, whether as part of a reformed United Kingdom or otherwise. Drawing on experiences from other parts of the world, it argues that the process of constitution making is as at least as important as the textual outcome, and that a well-structured, inclusive and consensual process is the best basis for a stable democratic future.

In summary, this book argues that if we wish to enjoy a flourishing life in a free and socially just Scotland (whether Scotland is an independent state or an autonomous state within a loosely federated United Kingdom) then we need a ‘Constitution for everyone’: a Constitution that is directed towards the common good of all its people, not towards the particular privileges of the rich, powerful and influential. Such a Constitution would facilitate all citizens to engage in an open and pluralist democratic process through which the common good – in all its plurality and variability, nuance and flexibility – can be identified and defended.

a In this book, following the conventional usage of almost all democracies outside the United Kingdom, the word ‘Constitution’ refers always to a supreme law that, as a minimum: (i) defines the state; (ii) regulates its major political institutions and processes; (iii) protects civil liberties and fundamental human rights; (iv) is binding on all institutions of the state, including Parliament itself; and (iv) can be amended only by a special process, usually requiring a broader consensus than that required for the enactment of ordinary legislation. The UK, in this sense of the word, has no ‘constitution’ at all, and the idea of an ‘unwritten, unentrenched, unenforceable constitution’ is oxymoronic.

a The Political and Constitutional Reform Committee of the House of Commons has even gone so far as to publish a draft Constitution for the United Kingdom for discussion. This is a very centralising text, which would significantly reduce the powers of the Scottish Parliament, but it is at least a technically sound draft that reflects the basic principles of constitutional democracy. The text of the draft constitution is contained in the committee’s Second Report, dated 3 July 2014: www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46302.htm

CHAPTER ONE

Does the Constitution still matter?

SCOTLAND IS CAUGHT between two conversations. One concerns Scotland’s constitutional future, its institutions of government and its relationship to the rest of the United Kingdom. The other is a conversation about poverty, inequality and social justice, land reform and environmental protection, wages, working conditions and public services.

The London-based parties and their allied interests in Scotland have long tried to present these as separate, unrelated and perhaps even contradictory debates. Seeking autonomy or independence for Scotland was, according to the leaders of the Labour Party, a distraction from ‘real issues’. This should come as no surprise. The Labour Party, despite occasional flirtations with devolution, has never felt comfortable with constitutional radicalism.a It has long had a ‘Tory’ streak within it, which has quite uncritically defended the traditional top-down institutions of the United Kingdom.b

However, the broad Yes alliance that arose during the independence referendum campaign started to connect the dots between these conversations. The SNP, the Yes Campaign, the Radical Independence Campaign, the Scottish Green Party, Labour for Independence, Nordic Horizons, National Collective, Women for Independence, the Reid Foundation and Common Wealc all recognised that policy and state structure were closely connected. These organisations appreciate that the constitutional structures of the state determine who has power, how they handle that power, to whom they are accountable, and, therefore, how the state will respond, in policy terms, to people’s needs. ‘Real issues’ can only be addressed if we have real powers under the control of a real democracy.

Piecing these two conversations together, it appears that the unjust, short-sighted, elitist, London-centric policy outcomes of the UK are related to, and at least in part are a direct consequence of, its decrepit, ramshackle, unbalanced and oligarchic political structure. In an article in The Herald in 2013, I wrote:

The electoral system for the House of Commons is unrepresentative, the composition of the House of Lords is indefensible, the powers of the Crown are excessive, secretive and unaccountable, rights are fragile, and privileges rife. There is a direct connection between allowing rulers to make up the rules as they go along and the failure of the UK state to serve the common good. The banking crisis, the expenses scandal, phone hacking, illegal surveillance, persistent unemployment and wage cuts, rising inequality, corporate lobbying, and the destruction of public infrastructure and services – all point to a state that has fallen into the hands of an unchecked oligarchy, bound by its own self-interest.3

Moreover, many have recognised that the process of making decisions – whose voices are included, and how they are listened to – can influence not only what decisions are taken (eg whether the local library is kept open as a public service or sold off to a developer for conversion into flats), but also the social and psychological effect of those decisions (eg whether the library really belongs to the local community, because ‘we’ built or saved it for ourselves and future generations, through institutions of local democracy that are participatory and close to the people, or whether it belongs to a distant, impersonal bureaucracy).a

It follows that the delivery of more socially just outcomes must begin with a revival and deepening of democracy. As Thomas Paine recognised, good Constitutions are known by their fruits:

When it shall be said in any country in the world, my poor are happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am a friend of its happiness. When these things can be said, then may the country boast of its constitution and its government.4

Those who expect the United Kingdom to start delivering progressive policies, if only there were a new Prime Minister in 10 Downing Street, are expecting a bad tree to bring forth good fruit: they are expecting an oligarchic system to behave and to deliver like a good democracy should. But that cannot and will not happen.5 Oligarchy does as oligarchy is: it brings forth rotten policies and rotten behaviour from its rotten nature. To enjoy good fruit, in policy terms, we do not need a new government, but a new state: not another rotten fruit from the same corrupt tree, but a new tree. Whether that tree is a Scots pine or British oak is to some extent a secondary issue, so long as it is a good tree and firmly rooted in a robust constitutional order.

Of course, the benefits of a good Constitution are indirect and instrumental, just as the inedible root of a tree leads only indirectly to the fruit. Even the best Constitution cannot pave a cycle lane or repair a bridge, manage a clinic or administer a vaccine, educate a child or take care of an elderly person. The Constitution, however, can uphold a democratic order that enables us to make our own decisions and to develop policies that serve the common good, while protecting human rights, promoting public accountability, and guarding against corruption. The Constitution ensures that those in charge of formulating policies, administering the state, enforcing the law, and delivering services, are not a self-selecting, self-perpetuating, self-serving ‘parcel o’ rogues’, but the democratically responsible agents of a free and self-governing people. It is with this in mind that the need for, and purposes of, a Constitution must be understood.

i Independence, Democracy and the Constitution

Economic inequality has returned to levels not seen since before the Second World War. One in five children live in poverty.6 Many suffer from a ‘low-wage, long hours’ economy, with all that means for stress, health, diet and a relatively low quality of life. Austerity policies cut deep into the social fabric, causing a surge in dependence on food banks.a But for all that, life in Scotland could be much worse. We have running water and reliable electricity: no civil war, no ethnic riots, no masked men with AK47S extorting money at roadblocks. Some – perhaps even the majority – are lucky enough to have a decent job, a nice house and a pension fund that is worth a bit. As long as you are not old, young, poor, or disabled, you can enjoy a quality of life not too far from the European average.

Likewise, our democracy might be substandard compared to other Northern and Western European countries. Our constitutional arrangements might be absurd. The United Kingdom – under whichever party that happens to be in power at Westminster – might be ruled by institutions that are distant, exclusive, secretive, oligarchic, increasingly corrupt, often incompetent, belligerent, and contemptuous of Scotland’s aspirations. The Scottish Parliament might hold its powers only at the grace and favour of another Parliament, which is barely representative, contains more nominated lords than elected representatives, and is in large part paid for by the private healthcare and fracking industries,7 but at least there are no gulags, coups, purges or show trials. Government agents never (‘well, hardly ever!’) raid newspaper offices to cover up their misdeeds.8 As long as you are not a radical Muslim, an investigative journalist, or a peacenik environmentalist at a protest march, you will be safe enough.

The Yes campaign claimed that independence would transform Scotland, resulting in a more balanced and prosperous economy, better public services and a higher quality of life for ordinary people. However, simply leaving the United Kingdom would not, in and of itself, guarantee much improvement. An independent Scottish Government would have more control over its own resources and policies but, equally, such fragile blessings as we now enjoy could be lost if an independent Scotland, like many other newly-independent countries before it, were to descend into chaos, ethnic strife, instability or dictatorship, leaving the country bankrupt and isolated. It is easy to see why opponents of independence took the view that the potential rewards of independence were not worth the risks. They were being asked to give up that which they knew for something that seemed to offer little automatic benefit and some risk of serious systemic failure.

Once the symbolism and the emotive appeals to history, identity or nationhood are removed from both sides, the pragmatic case for independence rests on the argument that a Scottish state would better serve the people of Scotland than the United Kingdom has done. All the haivering about policies, currencies, embassies, oil, and whether Scotland would have a few million more or less in the treasury from day one of independence, was – and remains – ultimately irrelevant compared to the key question: whether the institutions of an independent Scotland would be better or worse than those of Scotland in the United Kingdom. If an independent Scotland were to represent the interests of the people of Scotland, protect their rights, and serve the common good through democratic processes, then the people would flourish and prosper, not only economically but also in terms of ethos, culture and character. If, on the other hand, Scotland were to squander resources on vanity projects; if a small, self-gratifying elite were to syphon off our wealth and stash it in secretive foreign banks; if the civil service were to become a reservoir of political patronage; if, in other words, an independent Scotland were to be badly governed, then we would be no better off, and possibly even worse off, than at present.

Too many newly independent countries have gone from bad to worse because they have failed to consolidate stable democratic institutions and to build an effective state that reflects all of society, responds to public needs and respects human rights. Even today, successes are rarer than failures. The Economist’s Democracy Index of 2012 (not a flawless measure, but a reasonable one for these purposes) identified just 25 ‘full democracies’ out of 167 states, or 15 per cent of the total number, containing 11.3 per cent of the world’s population.9 A further 54 countries, containing 37.2 per cent of the world’s population, were classified as ‘flawed democracies’,10 meaning that while competitive elections took place, sound democratic governance was hampered by failings such as human rights abuses, the exclusion of minorities, the weakness of the rule of law, endemic corruption or political violence.a Consolidating a democratic order is a particular challenge for newly independent states. Authoritarian populism, the capture of state institutions by corrupt oligarchs, intercommunal violence, and erosion of the rule of law, are just some of the risks to which new states are particularly vulnerable. The risks are even greater in oil-rich countries, where the prize of being about to control valuable resources is a strong incentive for foul play. If the essential contention of the Yes campaign was that the common interests of the people of Scotland would be better served by an independent state than by the United Kingdom, their desire to ‘end London rule’ had to be backed by a positive plan for the construction of an effective, stable and inclusive Scottish democracy.

This is why the adoption of a written Constitution, far from being peripheral to the independence campaign, was absolutely central to it. Only a clear commitment to a strong Constitution could ensure that a small, corrupt, unaccountable and lawless clique in London would not simply be replaced by a small, corrupt, unaccountable and lawless clique in Edinburgh. Only a strong Constitution could defend the institutions of Scotland against incumbent manipulation, authoritarian backsliding and corruption, and so force the Scottish state to serve the common good rather than the private interests of a few. A Constitution would provide ground rules, above ordinary party politics, for the resolution of political disputes. It would prescribe a framework for the functioning of public institutions, defend the integrity of electoral, administrative and judicial processes, and protect the rights of individuals and minorities. As such, only a Constitution could reassure the people that an independent Scotland would not belong to any one person or party, but instead would be the common possession of all its citizens: a res publica.

ii Independence, Sovereignty and Folkric

Independence is a worthy cause (and may still prove to be a necessary one, if the rest of the United Kingdom does not show a sincere intention to change its ways), but those who wish to see Scotland flourish should not make independence the primary goal. Our wellbeing will principally depend not upon the name or the boundaries of the state, but upon how well governed we are within that state. Even the word ‘independence’ is unhelpful, not only because it has become emotive and politically divisive, but also because it provides a misleading diagnosis of our problems and an incorrect prescription for how to cure them. Independence simply implies the absence of external constraint. To think that Scotland’s problems will be solved by independence (or, for that matter, any degree of ‘more powers’) is to blame these problems solely or mainly on external factors. If Scotland is to flourish, we need not only to rid ourselves of control by Westminster (at least in its present oligarchic form), but also, more fundamentally, take democratic control and responsibility for our own country.

Instead of focusing on independence, we should seek ‘folkric’, or democratic self-government.aFolkric is also an adaptation of the concept of Swaraj, which, according to Ananya Vajpeyi, was the principal motivating idea behind India’s struggle for liberation:

If there was one word that dominated Indian politics from the 1880s, when the Indian National Congress was first founded, until Independence in 1947, this word was swaraj. Swaraj literally means ‘self-rule’: the rule of the self, or the rule over the self. Both the subject and object of ‘rule’ (raj) is the ‘self’ (swa). A subjugated country is ruled by others; a free country rules itself.11

As Vajpeyi explains, swaraj has a reflexive quality:12 the self (as sovereign) rules, and the self (as subject) is ruled. In the same way, folkric implies the rule over the people (as subject) by the people (as sovereign). This unity of sovereignty and subjecthood is the essence of democratic citizenship: those who rule over others are masters while those who are ruled over by others are slaves, but those who rule over themselves are citizens.

Making folkric our aim reminds us that the change we seek is much more than – and does not solely depend upon – a symbolic change in borders, anthems, flags, or even a change in the geographical locus of power from London to Edinburgh. Independence could be a necessary step towards folkric, depending on the extent to which Westminster is able to either reform itself or to relinquish control over Scottish affairs, but the pursuit of folkric, unlike the pursuit of independence, is not primarily concerned with whether the Union Flag or the Saltire flies over Edinburgh Castle. If folkric is the aim, we cannot be satisfied until we have established a democratic constitutional state in which the rights, dignity and voice of citizens are respected. Crucially, however, we could (at least in principle) achieve that satisfaction either in an independent Scotland or in a Scotland that is substantially autonomous within a looser and more equitable Union.

Folkric, in contrast to independence, is not a desire for Scotland to be governed by Scots (which would be a nationalist position, in the narrowest sense of the word), but a desire to be ruled to the fullest extent practicable by the people of Scotland (a democratic position). To embrace folkric as the objective is to recognise the fact that, in almost all internal respects, Scotland has always been governed by Scots. Even before devolution, the day-to-day governance of Scotland has always been performed, in large part, through an autonomous network of judicial, legal, administrative, educational, ecclesiastical, municipal and charitable institutions, all of which operate solely in and for Scotland, and are staffed almost exclusively by Scots.13 What there has not been, however, is much real democracy. The Scots who traditionally ran Scotland were not, in the main, chosen by or accountable to the people of Scotland; the state did not belong to the people, but to competing patron-client networks. In consequence, the MPS, civil servants, Edinburgh establishment and Labour party nomenklatura who actually ran Scotland learned to act as intermediaries and courtiers, but rarely as citizens.a They were often instinctively fearful of real democracy.14

In and of itself, independence says nothing about the continuation of power in these hands, nor about questions such as accountability, transparency, meritocracy and good governance. If we make folkric our aim, however, we would thereby commit ourselves to a democratic ideal that can go on illuminating our political life, acting as a standard by which to critique concentrations of power, erosions of rights and instances of nepotism. It centres our attention not just on ‘home rule’, but also on ‘who should rule at home’, and how.a

Striving for folkric is also a realistic objective in an interconnected world. Legally independent states like Norway and Iceland continue to work together and to share powers through international organisations that impose limits on their freedom of action. Unless there is a profound change in foreign policy, an independent Scotland would be part of the European Union, the Council of Europe, NATO, the Commonwealth and the British-Irish Council and, as such, would still have to respond to certain external obligations. These would limit ‘independence’, at least if we accept a rather simplistic definition of the word as ‘free from external restraint’, but would be compatible with folkric, provided these external obligations are supported by the people. In the same way, the sharing of certain powers on a UK-wide basis, if done in a democratic, consensual and equitable way, would fall short of independence, but would be fully compatible with a commitment to folkric.

iii The Constitutional Debate before the Independence Referendum

In making a case for independence, the Yes campaign frequently recognised the principle of democracy. They drew attention, for example, to the fact that Scotland in the United Kingdom is on the receiving end of policies – from the privatisation of the Royal Mail and the imposition of the Bedroom Tax to nuclear weapons and the Iraq war – that the majority of people in Scotland do not support. Independence was presented as a way of correcting this ‘democratic deficit’ and of ensuring that Scotland would always get the Government it votes for.

Meanwhile, the SNP’s longstanding commitment to a written Constitution was reflected in the Scottish Government’s increased attention to questions of constitutional transition and post-independence constitutional design. According to the November 2013 White Paper, Scotland would be governed during a transitional period immediately after independence by an ‘Interim Constitution’ (or ‘Interim Constitutional Platform’), which would adopt the existing devolved institutions to the needs of independent statehood, protect human rights based on the European Convention, and provide a stable institutional basis for future constitutional development. This Interim Constitution, it was hoped, would lay the foundations for an inclusive and effective constitution-building process in a way that would transcend party divisions, heal the divisions opened up by the independence referendum, and reintegrate No voters into the polity. It would have to be sufficiently comprehensive and robust to enable it to perform the legal and political functions of a Constitution – in protecting rights, structuring democratic processes, and protecting against the abuse of power – during the life of the first post-independence Parliament. Then, in a second stage of the process, a constitutional convention would have been established by the Scottish Parliament to prepare a permanent Constitution.

In most countries that became independent from the United Kingdom between the 1950s and the 1980s, a pre-negotiated prospective Constitution was put to the people when voting for independence. Malta’s independence referendum, for example, was not a referendum on the vague notion or principle of independence, but a referendum to adopt a new Constitution that happened to provide for Malta to govern itself independently. Policy documents from when the SNP was in opposition show a previous commitment to such a process; MacCormick’s 2002 draft, discussed extensively in A Model Constitution, appears to have been written with the intention that it would be put to the people before independence, and would be the constitutional foundation on which independence would be based. The two-stage process adopted by the Scottish Government in 2013 and 2014 therefore marked a change from the SNP’s previous policy.

There were good political reasons for this change of tack. The Scottish Government did not wish to dictate the terms of the future Constitution on the very sound grounds that a Constitution should be based on a broad consensus and should belong to all the people, not to the Government or any particular party. It would have been impossible to achieve such inclusion ahead of the referendum, since the parties, groups and movements opposed to independence would have no incentive to participate in the process. Also, the Scottish Government did not wish to alienate thrawn voters whose support for independence might hang on some small point of constitutional content, especially over controversial matters such as religion-state relations. Yet the Scottish Government could not shelve the issue of constitutional design until after independence. To do so would have created a constitutional vacuum and an unacceptable concentration of power in the hands of whoever might win the first post-independence elections. A two-stage process therefore seemed to provide at least some guarantee that Scottish democracy would be safe during the transitional period, while also enabling contentious issues to be delayed until after the referendum.

The decision to postpone permanent constitution making until after independence also opened up the possibility of greater public inclusion: not just an all-party deal, but an all-Scotland agreement. Favourable allusions to Icelandic-style ‘crowdsourcing’ were made. Although specific details of the constitution making process were never clarified, the 2013 White Paper promised that we would have a ‘People’s Constitution’, and that it would not be imposed by Alex Salmond or the SNP. As never before in Scotland, ordinary citizens would have had the opportunity to engage in constituting their country. After all, the Constitution is an act of the whole people establishing a government, and its legitimacy rests on the widest possible public agreement.

The disadvantage of the proposed two-stage process, however, was that it seemed to present an undefined, vague promise to the people of Scotland. The vote was simply on the general principle of independence, with little substantive detail behind it of what independence would mean in constitutional terms. The success of devolution in 1997 owed much to the work of the Constitutional Convention, which had not only built a broad consensus in favour of devolution before the vote, but had also done much of the detailed work in designing and negotiating the devolution package. This meant that people were not voting for a vague promise. If another referendum on independence, or something very like independence, were to be held, consideration should be given to a pre-independence constitutional conference or convention which would draw up a draft constitutional text to be put to the people. The process of agreeing constitutional specifics, rather than arguing over ill-defined, emotive and divisive labels, could be very beneficial; it could not only reassure voters, and thereby help to secure a positive vote, but also result in a set of proposals that are clear, coherent and well thought through.

The increasing prominence given to matters of constitutional design and process in the months leading up to the referendum was a reflection of the Scottish Government’s gradual realisation that their task was not simply to remove Scotland from the United Kingdom, but also to create viable and acceptable institutions for the new Scottish state. It showed a dawning awareness that constitutions, while not a panacea, do matter, and that having a written constitution to regulate the political institutions of the state is now the normal state of affairs for a democratic country. The Scottish Government and a broad range of civil society organisations recognised that a Constitution was not an ‘optional extra’ to be taken or left at will, but an essential basis for the legitimacy, stability, success and longevity of Scottish democracy. Although some commentators continued to defend parliamentary absolutism,15 the centre of informed public debate has moved on. No matter how radical the idea of a written Constitution might still be in a UK context, in the context of an independent Scotland it has become an accepted and welcome necessity.

In the event of independence a written Constitution would have been demanded not only by the Scottish public, but also by international circumstances. The absence of a written constitution would be unthinkable in the context of a European country achieving independence in the 21st century. A range of international agreements, to which Scotland would remain bound on independence or, even if not, would almost certainly seek to embrace shortly afterwards, would provide a framework of internationally recognised constitutional standards to which states must adhere if they are legitimately to claim democratic status. These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination against Women, and regional instruments such as the European Convention of Human Rights and the European Convention on Local Self Government. Although these international agreements leave very wide latitude to states in how they choose to constitute themselves, they nevertheless provide clear minimum baselines that states must comply with in order to be legitimate.

With the question of principle generally settled in favour of a written constitution, discussion amongst the Yes campaign shifted to a more pragmatic and forward-looking discussion of what a future Scottish Constitution might look like, and what its purposes, design, nature, content and form might be. For the most part, there was agreement, at least within the Yes camp, on the basic institutional structures by which an independent Scotland should govern itself. The creation of the Scottish Parliament in the 1990s provided an opportunity for a wide consensus to be reached on the basic institutional design, and there was little desire to deviate from this. While remaining within the global family of Westminster derived institutions,a the Scottish Parliament embodied a number of reforms intended to correct the worst of the perceived failings of Westminster. These included the adoption of a system of proportional representation, fixed term elections (with the consequent removal of the Crown prerogative of dissolution at will), the formal election of the First Minister by parliamentary vote, a system of pre-legislative consultation, and measures designed to strengthen the role of committees in the legislative process. Although these institutions have been less transformative than first hoped – failing, for example, to overcome ingrained habits of adversarial politics16 – they have nevertheless provided a form of government for Scotland that is both broadly accepted in terms of public support, and generally acceptable in terms of performance. There has so far been relatively little appetite, even from the radical left, to change the basic structure of existing parliamentary institutions.

Indeed it is quite rare, globally speaking, for the macro-level institutional design to be radically changed, even when states adopt entirely new constitutions. Parliamentary democracies rarely become presidential ones, and federal states rarely become unitary. Constitution makers are inevitably constrained by what a country has known in the past and, therefore, what those who use the political system, whether as politicians or as citizens, are already familiar with. This is not to say that important constitutional changes cannot take place, only that they do not take place in an institutional vacuum; changes usually occur within existing structures rather through the invention of entirely new ones. We can therefore reasonably expect that, if there had been a Yes vote in 2014, the resulting Scottish Constitution would have been based on a familiar combination of parliamentary democracy, proportional representation and a unitary structure. We can probably expect the same of any future Scottish Constitution building process, either if independence is achieved in the coming years, or in the context of an autonomous Scotland within a reformed United Kingdom. Fortunately, this combination, which is found in the successful, small democracies in the ‘arc of democracy’ that stretches across Northern Europe, is known to promote good governance17 and democratic consolidation.18

Within these macro-level structures, there was nevertheless plenty of room for reforms, at the meso-or micro-levels, to improve the effectiveness, inclusiveness and openness of Scotland’s institutions. As Negretto writes:

At the macro level, foundational constitutional choices may seem to remain unaltered over time. Most countries in Latin America, for instance, have maintained the presidential blueprint adopted in the 19th century. But many institutions that have the capacity to transform the quality and performance of presidential regimes have changed in substantive ways over relatively short periods of time. Such is the case of electoral rules, presidential powers, decentralisation schemes, and the organisational forms and powers of the judiciary and oversight institutions. In other words, what looks like the same constitutional structure at the macro level may turn out to be a complete different set of institutions once we consider the accumulation of short-term changes at the level of secondary rules that affect the daily operation of a constitutional regime.19

A relatively small group of people – acting through such civic organisations as So Say Scotland, the Electoral Reform Society, the Reid Foundation, Common Weal, National Collective, Environment Link Scotland, and the Constitutional Commission – made important contributions to this debate on deepening, localizing and protecting democracy. Specific issues raised in the period before the referendum included the question of whether the ceremonial head of state should be hereditary or elected, whether constitutional review functions should be performed by the existing Court of Session or by a new Scottish Supreme Court, whether there should be an enhanced role for direct and participatory democracy alongside parliamentary mechanisms, and the role and status of local government in the Constitution. Other proposed reforms included an increase in the number of members of the Scottish Parliament (to staff the new committees and portfolios, such as foreign affairs and defense, that would be needed in an independent state), a quota or parity system to increase the parliamentary representation of women, minorities and marginalised groups, and the creation of a second chamber to assist in scrutinising legislation and overseeing the executive.

However, such institutional reforms did not greatly capture the public imagination before the referendum, and were hardly taken up by the political parties, with the partial exception of the Scottish Green Party. This, too, is understandable. The Unionist parties would not be drawn into a discussion of constitutional design, for to have done so would have made the idea of a Scottish state seem much more real, and therefore more attractive to voters. It would have been very difficult to defend British institutions while comparing them to the options open to an independent Scotland. Meanwhile, the SNP, as a majority party, was unwilling to commit itself to institutions that would take power out of its own hands; the veto mechanisms and counter-majoritarian provisions that were prominent in the party’s 2002 draft silently disappeared from the 2014 interim text, and were absent from the party’s public pronouncements on constitutional policy.a