Dissenting Radical

The Common Good: A 'Christian-Left' perspective on radical theology, progressive politics, authentic culture and sustainable living.

Month: November, 2013

The People’s Constitution

The People’s Constitution project, an experiment in ‘crowd sourcing’ a new written Constitution for an independent Scotland, is now live. You can sign up and take part in the discussion here.

This is completely unofficial, of course, and has nothing to do with either the Scottish Government or the Constitutional Commission. Nevertheless, its a worthy endeavour that might well yield effective results if it gets off the ground.  Even if it just gets people thinking and talking about Constitutions, why we need one, and what we should put in it, that would be something.

This is the draft text that they have come up with so far.  I recognise it is a work in progress – that’s the whole point. If the project works, and people get involved in putting forward, debating and voting on ideas, then this text will change over time. So the following comments are intended simply as an initial commentary on the text as it stood on 28th November 2013.

Let’s start with the good bits. This is, in many ways, a good little Constitution. It has a certain brevity, simplicity and elegance about it. Its not overly complicated. It provides for a unicameral Scottish Parliament elected by proportional representation for semi-fixed four year terms (premature dissolution is possible only if a government cannot be formed, or if Parliament vote for its own dissolution by a two-thirds majority). The Scottish Government would consist of Ministers elected by and from, and accountable to, Parliament. There would be an independent judiciary, with the power of judicial review of the constitutionality of laws. The Queen would be retained as Head of State, but very much as a ceremonial figurehead without even the semblance of power. The Constitution includes an enforceable Bill of Rights, provision for the constitutional status of local government, and a full set of independent ‘integrity branch’ institutions (Electoral Commission, Boundaries Commission, Public Service Commission, Ombudsman etc).

In all of these respects, the text reflects the broad trend of Scottish constitutional thought.  In many particulars the text borrows quite freely from the Constitutional Commission’s 2011 text, entitled ‘A Model Constitution for Scotland’.  Its general outline also resembles that of the SNP’s own 2002 ‘MacCormick’ text – a Scandinavian style institutional structure which can be traced back to the text produced by the Scottish Provisional Constituent Assembly in 1964.

The ‘People’s Constitution’ text also includes some interesting – and I think in principle welcome – democratic innovations. There is provision for citizen-initiated referendums, enabling public petitions to lead to a referendum on a given issue if it has not been resolved by Parliament. There is also a provision for the recall of individual members of Parliament  ‘ on grounds of negligence, corruption, criminal conviction or other gross misconduct’.

Some of the most innovative provisions deal with preventing the confusion of public duties and private interestscorruption, or what might be less delicately termed ‘corruption’. Ministers, for example, may not engage in any private employment related to their former Ministerial duties for a period of five years after leaving office. Their personal assets and investments are to be held in escrow during their continuance in office and for six months afterwards. A similar emphasis on probity can be found in the provisions relating to ‘constitutional money’ (see below) and the requirement to draw up a balanced budget. As someone who regards prudent finances and the avoidance of debt as the essential foundation for progressive policies and sustainable social justice, these provisions are, at the very least, worthy of deep consideration.

Finally, the People’s Constitution embodies some substantive provisions that, on the whole, I welcome: a constitutional commitment to universal public healthcare, to publicly funded university education, to sustainable environmental stewardship, and – yes – even to animal rights.

So far, so good. Now for the criticism. There’s quite a lot of it:

(1) The citizenship rules are a bit ‘little Scotlander’. I wouldn’t necessarily be entitled to citizenship, because the citizenship rules go by birth and not by residence. Having been born south of the border, I wouldn’t be able to be a citizen (at least, not automatically), of the country I have long called home. This goes against everything the SNP has stood for, in terms of its open and inclusive approach to citizenship, for many decades.

(2) The fundamental rights and freedoms provisions are vaguely phrased and very weak. There are very few procedural or substantive limits on the ability of Parliament to restrict rights by law, or to set them aside on unspecific ‘national security’ or ‘public safety’ grounds. It looks like the protection of human rights under this Constitution would be inferior to that already existing under the Scotland Act. Incorporation of the European Convention on Human Rights into the text of the Constitution would do much to improve it.

(3) It is not clear whether the socio-economic entitlement, such as public healthcare and education, are intended to be justiciable rights, or whether they are political duties imposed upon Parliament. To avoid confusion, I would have made this clear. There are usual examples in South Africa and Kenya, amongst others, on which we could draw to make socio-economic rights effective, without hindering the primacy of elected representatives in their delivery.

(4) The amending formula is deeply flawed. There is no counter-majoritarian protection. The constitution can be amended by a simple majority vote in Parliament followed by a referendum. I would have preferred a three-fifths or even two-thirds majority rule for the parliamentary vote, to ensure that amendments enjoy cross-party support. Also, the majority requirements for the referendum to ratify amendments should be clarified: there is a big difference, say, between 50%+1 of those who vote and 50%+1 of those who are eligible to vote. These things cannot be left to chance.

(5) Likewise, the provisions on initiative referendums and on recalls are not clear at all. The technical draftsmanship is very poor, to the extent that the constitutional provisions as written would be unworkable unless substantially reinforced by legislative and conventional rules.

(6) There seems to be slight over-profileration of independent commissions. I count at least eight: the Legal Service Commission (also known, due to textual inconsistencies, as the Judicial Appointments Council), Boundaries Commission, Electoral Commission, Public Service Commission, Open Government Commission, Broadcasting Commission, Law Commission and Constitutional Monetary Authority. Maybe they are all necessary and useful, but every one of those commissions needs an office, a staff, an expense account. Could some of these functions be performed in other ways, while still preserving the independence of the service concerned? I’m not going to die in a ditch over this, but it needs more thought. Independent bodies of this sort are good and necessary, but one can have too much of a good thing.

(7) The emergency powers provisions are far too open to abuse. They essentially give the government the power to suspend the Constitution for up to thirty days. Additional safeguards are required, such as: (a) mandating only a very short time (say, five or ten days) during which a state of emergency can exist without explicit parliamentary approval; (b) requiring a super-majority in Parliament to approve a state of emergency, preferably by a two-thirds majority, which is likely to give the opposition veto-power; and (c) placing limitations on which rights can be suspended during a state of emergency – some, such as freedom from torture and slavery, are just to sacred to be surrendered at any time.

(8) There’s some weirdly authoritarian stuff about respecting the police. I don’t know why, but that chills my bones a little.

(9) The provision for a Constitutional Money system, based on debt-free money issued by a publicly owned central bank, with an investment bank to support economic development, should be music to my ears. It tackles economic problems at their poisonous source: the control of the money supply by for-profit banks which have the power to create money as debt. I am not sure, however, whether this is possible to achieve from the outset. There’s something to be said for keeping the pound, at least in the short to medium term. In view of this, it might be better to leave the currency to sub-constitutional legislation.

(10) Members of Parliament must have ‘proven decision-making experience’. If this means anything, it limits membership of Parliament to those with some executive or leadership experience  – a point that would probably improve the standard of our legislators, but at the expense, potentially, of excluding the uneducated and those at the bottom of the pile from public office. If we see Parliament as a gathering of the great and good to decide upon public affairs – in essence, an ‘aristocratic body’ – then we should welcome that – but if we see Parliament as a reflection of society as a whole, then we should reject it as a means of excluding those marginalised groups who most desperately need to be included in political decision-making. An alternative reading is that the phrase means little, because it is subjective and unenforceable. If so, it is a redundant, and probably pernicious, form of words.

Overall, the People’s Constitution, notwithstanding these criticisms, is not a bad attempt. I ‘d like to think that the problems outlined above are, for the most part, problems of detail, reflecting poor constitutional craftsmanship rather than being reflective of bad choices. In an hour or so a competent constitution-maker could easily correct many of the small-but-annoying errors, gaps, inconsistencies and weirdnesses, leaving a Constitution which, if not perfect, would at least compare favourably with the Constitutions of other northern European nations.

All this, and more, is up for grabs. The Scottish Government’s independence White Paper has outlined the steps from the referendum, through an interim constitutional platform, to an inclusive Constitutional Convention that will prepare a new Constitution for Scotland. Get your bids in early.

But all of this is just a pipe-dream unless people have the courage to get out there and vote for independence. Remember, the Scottish Government and the Yes campaign cannot win independence. Only we, all of us, can win it. And all we need to do, in order to win it, is each convince one more person to vote Yes.

Ours is a Simple Faith

I have a remarkably high tolerance for Christian music in various forms, from medieval choral music, through bluegrass gospel, to modern worship music.

However, much of this vast corpus of music isn’t really suitable, lyrically and theologically, for progressive or liberal Christian services. As the old joke says, “Why Unitarian Universalists can’t sing? Because they are always scanning ahead to see whether they disagree with the words!”

So I’m always on the look-out for good, uplifting, singable songs that can be added to the hymnal. Today I discovered this little gem, which I think really gets to the heart of what Christian faith, ethics and practice is about.

(Also, towards the end it becomes about as close to happy-clappy as we get).


Ours is a simple faith
Life is a short embrace
Heaven is in this place every day

Hope is the ground we till
Make each day what you will
Thankful for dreams fulfilled every day

No room in this heart for fear
No judgement day drawing near
Trust that inner voice you hear every day

Life’s not a goal or race
Its about heart and faith
And living a life of grace every day

Ours is a simple faith
Life is a short embrace
Heaven is in this place every day

Hope is the ground we till
Make each day what you will
Thankful for dreams fulfilled every day

Trust is an open hand
Making an honest stand
Rooted here in the land every day

Living the mystery
Seeking the harmony
Here between you and me every day

Ours is a simple faith
Life is a short embrace
Heaven is in this place every day

Hope is the ground we till
Make each day what you will
Thankful for dreams fulfilled every day

[Music and Lyrics by Mustard’s Retreat. Check them out. They’ve got some good stuff.]

Haggis Pakora

HaggisPakora

This week I have been reading Granville Austin’s ‘Constitution of India: Cornerstone of a nation’.

The Constitution of India is without doubt one of the greatest achievements of human civilisation – an intellectual, moral, cultural wonder of the world. In the Constitution the high principles of freedom and democracy, and the promises of fraternity and social justice, are brought down from the heights of abstraction and embodied in mundane, sometimes idiotic, often corrupt, but nevertheless valiant and vital, parliamentary institutions.

Indians are rightly and justifiably proud of their Constitution. Yet, without detracting from the Indian achievement, the Constitution of India is also, in a paradoxical sense, a great British achievement. It is a product of the values and institutions of the British Empire. It could not have been produced without the example and experience of the Westminster system in its manifold deviations, nor without the training that many of the Indian constitution-makers had at the Bar or in British Universities. The Indian Constitution was even written in English. As a legal and cultural artefact, it belongs to the worldwide ‘social union’ of British-Imperial culture – a shared commonwealth of history and understanding that stands ever firm, even as nation after nation has graduated from London-rule, through various stages of devolution, to full independence.

Yet the paradox is this: the Constitution of India could not have been achieved by the British themselves. The best the British could produce was the half-hearted semi-democratic ‘Devo-Max’ arrangement of the Government of India Act, 1935. The Indian Constitution, as the foundation for an independent, democratic, secular republic, could only have been written because the leaders and the people of India found the courage and strength to reject British rule, and the wherewithal first to demand, and then to build, something better.

In this brave course, India followed where Ireland had led. In reading Austin’s book, I was surprised to discover the extent to which Indian founding fathers consciously looked to De Valera’s 1937 Constitution of Ireland, rather than to the creaky institutions of late-imperial Britain, for examples of how to build a modern democratic Constitution.

I wonder, perhaps, if there are parallels here between India and Scotland. Sometimes, it seems, the best thing a noble-minded (but thoroughly opportunistic, venial and hypocritical) empire can do is to pass gently away, leaving its cultural treasures to be picked up and refashioned by those who were once subject peoples but are now free citizens.

Perhaps, to preserve what was good about Britain, and to leave behind what is bad, we need to find the courage to become independent. We need to say ‘Yes, we can do better than this’. In order to face our future and to make peace with our past, we need to be willing to constitute ourselves anew – to say ‘Yes, we will take the reins of government into our own hands. Yes, we will be responsible for our own country and our own future – we, together.’

This is a bold thing to do. It means shaking off sloth, apathy, complacency, fear, despondency and negativity. It is an act of faith, and sometimes I don’t think I have enough of it. But that, ultimately, is what Scottish Independence about: the chance for Scotland to reconstitute itself on democratic principles and to be re-founded as a free and flourishing res publica.

In doing so, we will take the best of British heritage (building on it, not rejecting it) and the best of global excellence – from India, Ireland, Canada, or elsewhere. We will combine these ingredients in our own unique way to produce something unmistakeably Scottish, but in no way ‘narrowly nationalistic’ or inward-looking.

The SNP’s Best Kept Secret: People Power

In Scotland all the talk is of independence, the referendum, and constitutional change.

Last week Parliament gave its approval to the Referendum Bill (unanimously, I might add), giving the Scottish Government the legal authority to proceed with its intended referendum on independence. Perhaps the real victor in this debate, so far, is the referendum itself. Referendums, once a rare foreign novelty, are now a central institution of our political life – a way of settling longstanding differences and of giving a clear popular mandate to politicians. Our political system has recognised that when issues of sovereignty and fundamental constitutional principle are at stake, the sovereign people (rather than their elected representatives) should be called upon to make a decision.

Of course, as long as we remain part of the UK, this appeal to popular sovereignty, although politically rooted in such declarations as the Claim of Right, is not enforceable. In law, the Crown-in-(Westminster) Parliament is still sovereign, at least as far as domestic affairs are concerned (the relationship between Parliamentary Sovereignty and EU Law is another matter, and rather tangental to these purposes).

Unlike citizens of Ireland, Denmark or Australia (who are entitled to have a referendum whenever constitutional change is proposed), or those of Latvia (who can demand a referendum on constitutional amendments by means of a petition signed by one-tenth of the electorate), or those of Spain (who are entitled to a referendum if one-tenth of the members of Parliament insist), we are only entitled to a referendum when the Government of the day sees fit. As always, we have a conventional rule, not a truly constitutional rule, and this convention is both interpreted and enforced (or not) by the Government as the Government sees fit. That’s why there was a referendum on changes to the Westminster voting system, but not on proposed changes to the House of Lords – it was political fudge, not constitutional principle, that won out.

The Constitution of an independent Scotland, we are told, would be different. In an independent Scotland, the principle of the sovereignty of the people would be embodied in a supreme Constitution – a higher law, binding on Parliament, Government, the courts, and all other public authorities (and private persons) – which can only be amended by a direct act of the sovereign people in a referendum.

In fact, the Constitution of an independent Scotland could be different in many ways from the old Westminster model. The SNP’s ‘MacCormick draft’ (2002) envisages a parliamentary, consensual and decentralised Scottish State. It provides for a unicameral Parliament elected by proportional representation. Parliament would be elected for fixed four-year terms, subject only to premature dissolution by the Head of State in the event of being unable to form of a Government. As a substitute for the delaying and revising power of a second chamber, a minority-veto and referendum mechanism is proposed. The monarchy would be retained, although the Crown prerogatives would be curtailed, with powers of peace, war and treaty-making transferred to Parliament, and the conventional relationship between the Head of State and the executive placed upon a less ambiguous constitutional basis: the Prime Minister would be formally elected by and responsible to Parliament.  There would be an independent judiciary chosen on the advice of a non-partisan appointments committee, and provision for autonomous local self-government within the framework of a unitary but decentralised State.  The MacCormick draft would also guarantee protection for basic civil, legal, religious, and political rights, based on the European Convention on Human Rights and its protocols.  All this would be embodied in a rigid Constitution, capable of amendment only by a three-fifths of Parliament, followed – as is right and proper – by a referendum.

At least, that was the SNP’s position. Since then, the SNP’s constitutional thinking has moved on. Now we are to have a two-stage process, with an Interim Constitutional Platform providing a basis, after independence, for an inclusive constitution-building process.  It remains to be seen what this Interim Constitutional Platform will look like, and whether it will embody the principles of genuine constitutionalism. Recent utterances by senior Scottish Government figures seem to indicate a retreat from this principle into the notion of parliamentary sovereignty, with the sovereignty of the people being politically acknowledged but legally ignored. If this is the case, and if independence would simply relocate power from Westminster to Holyrood without democratising it through a supreme constitution that remains in the hands of the sovereign people, then the SNP will have betrayed the people of Scotland and betrayed the constitutional pioneers of the Scottish national movement who objected not only to government from Westminster, but also, crucially, to the ‘Westminster way of governing’. I still have hope that the hearts of the First Minister and the Deputy First Minister are in the right place, and that the stumbling blocks lie in the civil service and not in the Cabinet. Even so, I do not relish the prospect of voting for a ‘blank check’; a properly entrenched Interim Constitutional Platform, protecting fundamental rights and the basic structures of democratic governance from ‘authoritarian backsliding’ and ‘incumbency manipulation’ (i.e. Governments playing silly-buggers) would do much to reassure me.

The MacCormick text has other surprising and innovative features which could improve the quality and the responsiveness of our democracy.  One of these features is the addition of a ‘minority-veto referendum’ mechanism is to the legislative process. Under this mechanism, two-fifths of the members of Parliament (i.e. 40% of the total membership) may demand that any bill (other than a money bill), be suspended for at least twelve and up to eighteen months. After this period of suspension has elapsed, the bill may be put to the vote again in Parliament, with or without amendment, and may be passed by absolute majority vote. During the period of suspension, however, the Government may decide to override the suspensive veto by putting the bill to the people in a referendum. If the bill is approved by a majority of those voting in the referendum, it is at once presented for royal assent; if not, it is deemed to have been rejected.

This minority-veto referendum mechanism is intended to act as a check on the excessive power of the majority. While appearing to draw on similar provisions in the Constitutions of Denmark, Iceland, Latvia and Ireland, the specific details of this proposal are unique. It is not intended to result in frequent referendums, but rather to compensate for the lack of a second chamber’s powers of revision and delay; it encourages the Government to avoid the risk of a frustrating delay or embarrassing referendum defeat by taking the opposition’s objections and proposed amendments seriously.

Some may regard these provisions as irrelevant, or even pernicious. Why should a Government, with a majority in Parliament, have to listen to the opposition at all, let alone submit to their power of veto? The answer lies in the simple fact that Governments make mistakes. They legislate in haste. They legislate for hard cases and make bad law. They lose touch with the people. They break election promises. At present, the opposition parties can moan and whine, but they cannot do anything about it. They have no authority, and so no responsibility. A minority veto referendum system such as that proposed would give the opposition a real voice: the power to inflict a crucial and sufficiently frustrating delay upon the Government’s legislative agenda, or else force the Government to go to the people in a referendum. Imagine what that would have done, for example, to the minimum alcohol pricing debate. Imagine what it could have done, if such a system were to be applied at Westminster, to the Coalition’s welfare cuts: Labour would have had to put up or shut up; the Government would have had to either face a delay – and, in effect, admit it is too unsure of its mandate, or face the people in a referendum. That could have been very interesting.

Even with such a mechanism in place, the Government would still be in a strong position.  Faced with a two-fifths minority in Parliament who are strongly opposed to a bill, the Government would, in effect, have three options: if the Government is in a hurry, in no mood to compromise with the minority, and confident of popular approval, the Government might choose to put the bill to a referendum; if the Government thinks it prudent to defer the issue for twelve to eighteen months, and then re-present the bill, perhaps with some subtle amendments, then this option is still available; if, on the other hand, the Government wishes neither to wait for so long, nor to risk a referendum, it can negotiate with the opposition parties in the hope of persuading them to refrain from invoking this mechanism.

Moreover, requiring two-fifths of the members of Parliament to initiate the minority-veto referendum procedure ensures that it is unlikely to be invoked except at the instigation of the Leader of the Opposition. Minor parties and independents will not, under most foreseeable circumstances, be able to use it as a means of disruption or attention-seeking – at least not unless they can band together to form a substantial opposition bloc. It is not in the interests of the Leader of the Opposition to abuse this mechanism, since the Government could call his or her bluff by putting the bill to the people, and no party will wish to risk undermining its creditability, and depleting its electoral funds, by provoking referendums on bills of minor importance. So referendums are likely to be called only when the severity of political division requires it – in which circumstances, the referendum may prove to be an excellent way of focusing, and then defusing, political tension.

Overall, this minority veto referendum procedure provides an excellent balance, which should encourage a moderate and mature form of democracy. It would be an effective remedy against attempts by the majority to impose divisive, hurried or ill-considered legislation, but with no loss in terms of effective governability or stability.

Similar provisions are well tried and tested in several other European nations  and there is no reason why they should not be beneficial in an independent Scotland. This doesn’t mean, of course, that we should necessarily follow the minority veto referendum mechanism of the McCormick text to the letter. There are other ways of achieving the same aim. Italy has an abrogative referendum mechanism that enables people, by popular petition, to trigger a referendum on the repeal of certain laws. Latvia’s Constitution allows people to propose and then vote on new laws – bypassing Parliament altogether. These and other alternatives could also be considered. Denmark’s minority veto referendum mechanism enables one-third of MPs to demand a referendum, and not merely, as in the McCormick text, to delay a bill pending possible over-ride by a referendum called by the majority.

Sadly, as the MacCormick draft retreats into history, these democratic possibilities are all-but forgotten. They are never mentioned by the SNP or anyone else. What role are referendums to play in Scotland’s future? Are we to vote now, once and for all, and then cede power irrevocably to Parliament, with the expectation that we can trust Governments for four or five years at a time? Or are we to have a Constitution that includes the people, keeps sovereignty in their hands when it comes to constitutional amendments, and lets the people have a decisive and direct vote on matters of great political controversy?

The democratic legacy of the MacCormick Constitution is the SNP’s best kept secret. If it could turn the independence referendum into a referendum on more democracy and better governance, and present it as a project of democratic renewal rather than one that appeals to nationalism, then it could win. The White Paper, the Interim Constitutional Platform, and the SNP’s proposals for future constitution-building, will enable us to see whether the SNP still – despite the temptations and pressures of government – lives up to its democratic principles.