The SNP’s Best Kept Secret: People Power

by Elias Blum

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.