The People’s Constitution

by Elias Blum

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.