A Second Chamber for Scotland: Senate or Tribunate?
by Elias Blum
All hitherto published proposals for a Scottish Constitution of Scotland have envisaged a unicameral Parliament, and the draft interim constitution, published in June 2014, is no exception. Although not unheard of, calls for a second chamber have so far been muted and rare. As the Parliament of Scotland before 1707 had just one chamber, it is tempting to attribute this apparent preference for unicameralism to historical distinctiveness; unicameralism (more inclusive, egalitarian and comradely than the English practice of separating the ermine-bedecked Lords from the grimy Commons) is the auld Scottish way. However, more proximate ‘path dependency’ is probably a greater influence. Having been accustomed to a unicameral devolved Parliament since the 1999s, Holyrood politicians see little need for a parallel assembly that could rival their prestige and authority. Moreover, second chambers are today most associated with regionalized or federal states, where they help to protect the identity of cultural or territorial units, and to give them a voice in national law-making; a second chamber may be unnecessary in a relatively small, homogeneous country like Scotland.
Indeed, many of the small states composing northern Europe’s great ‘arc of democracy’ – Luxembourg, Iceland, Norway, Denmark, Sweden, Finland, and the Baltic States – do well enough without a second chamber. The absence of a second chamber, however, does not mean that these states concentrate unlimited or unrestrained power in a bare majority of the members of a single chamber. Instead, they make use of constitutional mechanisms that perform the functions of a second chamber – such as facilitating scrutiny, restraining hasty and badly-drafted legislation, protecting constitutional rights, and representing the diversity of society – in a unicameral system. In Sweden, any ten members of Parliament may delay, for a year, any bill that would impose limits on the exercise of protected rights and freedoms. This delay may only be overturned by a 5/6ths majority (84%) of the members of Parliament, giving even a small minority the right to impose a period of reflection and reconsideration on the Government. An advisory ‘Council on Legislation’, consisting of judges, is required to examine bills in order to report on how they ‘relate to the Fundamental Laws and the legal system in general’, as well as on their internal coherence and technical quality. A special parliamentary ‘Committee on the Constitution’, which is ‘entitled to have access to the records of decisions taken in Government matters and to the documents pertaining to such matters, as well as any other Government documents that the Committee deems necessary’, is charged with ‘[examining] ministers’ performance of their official duties and the handling of Government business’. Sweden is not alone in adopting these check and balances. Denmark’s Constitution, besides a minority-veto referendum mechanism that allows one-third of the members to refer a bill to the people, also allows a two-fifths minority to delay bills for twelve weeks – a minor concession to the Opposition, but nevertheless a means of encouraging the Government to think again, and perhaps to be more amenable to accepting Opposition amendments.
A second chamber does, however, have certain advantages over other ways of limiting and balancing the power of the governing majority. One of these is that it could be constituted on a different representative basis. In a geographically diverse country such as Scotland, a second chamber could, for example, give equal representation to the Western Isles or Clackmannanshire as to Glasgow; although not a ‘federal’ country, the principle of equal representation – albeit to a chamber with unequal powers – might help to ensure that the interests of remote and rural communities are adequately defended in Parliament.
If the use of mandatory candidate quotas to promote the representation of non-elite socio-economic groups is regarded as too far-fetched, a second chamber could also provide a less controversial means of ensuring that people from all walks of life, and not just professional politicians, are represented. The Model Constitution made provision for a ‘Consultative Assembly’, as a form of quasi-second chamber, with the right to propose and to review legislation, in which economic and social interest groups would be given balanced representation. Having a bloc of farmers, trade unionists, or representatives of crofters, sitting in a parliamentary chamber, would build on previous experiments such as the Civic Forum. Such ‘vocational’ or ‘functional’ representation might be combined with geographical representation favouring rural areas, as discussed above, to create a workable second chamber that represents the diversity of Scottish life. Given legislative powers at least equivalent to the House of Lords, this would provide a useful scrutinizing and revising chamber. If armed with a veto over non-financial legislation that could only be over-ridden by a sufficiently high threshold (e.g. by referendum, by a two-thirds majority vote in the primary elected chamber, or by an absolute majority in the primary chamber after an intervening general election), such a second chamber would provide a fairly effective check on the absolutism of the Government, and promote a more moderated and balanced politics. If such an institution were established, it would remove the need for other checks and balances, like those used in Denmark and Sweden.
A more radical alternative is the selection of a second chamber by ‘sortition’, or random lot. This is the so-called ‘Athenian option’, after the use of random lot in ancient Athens, although random lot was also widely used in other classical as well as medieval republics; it might just as well be known as the ‘Florentine option’, the ‘Venetian option’, or even the ‘King’s Lynn’ option.
Random lot is an inherently democratic device, since (provided the pool from which prospective candidates may be drawn is not restricted to particular nominees or groups) it ignores considerations of wealth, fame, popularity, status, education, connections and ability. The lot, compared with elections, allows for a more equal distribution of offices, rewards, burdens and honours, and prevents the rise of cliques and factions. The one with many friends and clients, who has plenty of money to buy partisans, has a great advantage in elections, but is on a level with the poor, obscure, humble citizen in the drawing of (fair) lots.
It would not be sensible to choose the members of the sole or primary chamber of Parliament by lot, since in a parliamentary democracy these members are part of the chain of democratic delegation and accountability which runs from the people, through Parliament, to the Government. Selection by lot would break this chain, denying the people an active choice in who should govern them and making accountability difficult to enforce. However, it is possible to apply sortition to a second chamber, which has no role in the formation or removal of governments, but performs an ancillary, balancing role.
Imagine, for example, if there were to be a second chamber of one hundred citizens, randomly selected from the electoral register. The lorry drivers, the plumbers, the car salesmen, the receptionists, the street stall vendors, the apprentice joiners and the kitchen porters, the teachers, the doctors, the advocates and the architects, would all be in the mix together, without any distinction. Such an institution would not be a ‘Senate’, but a ‘Tribunate’. There would be no party hacks. A few necessary exceptions, similar to those that apply to jury service, might be necessary, as well as an option to defer on personal grounds. A one-year term of office would be long enough to give people a feel for the task, without becoming institutionalized. After having served, re-selection would be prohibited for at least five years (the odds are very much against it anyway), and ex-members would not be able, during that five years, to stand for election (so that the institution which is supposed to be shield does not become a ladder). There would have to be clear rules, similar to those concerning maternity leave, to ensure that people’s jobs have to be held open for them and that their salary would be covered by the state while performing their duties. Equipped with the power to veto laws or to force a referendum, such a Tribunate could overturn oligarchic politics and radically revitalise democracy.
There are less radical alternatives, stopping short of a randomly-selected second chamber. In a unicameral system, a sprinkling of randomly selected members of the public might make a useful addition to parliamentary committees. The numbers involved would be relatively small – perhaps, for instance, a panel six members for each parliamentary committee – but the difference to the quality of deliberation, which would have to play closer attention to public interests and not just party political ones, could be substantial.
In Germany, the Bundesrat consists of ‘delegations’ from the governments of the sixteen Länder. In Australia, the Senate is directly elected, but with equal representation for each of the country’ six states. Spain takes a mixed approach, with most of the Senators being directly elected from the country’s provinces, and the remainder nominated by the parliaments of the Autonomous Communities.
The Civic Forum was a representative body of civil society organisations, created alongside the Scottish Parliament as a quasi-second chamber. It was soon ‘choked to death’ by politicians and civil servants, because without a firm constitutional basis it could not defend itself or its role. The lesson of the Civic Forum is that if you want an institution to be able to restrain the Government and hold it to account, that institution cannot depend on the goodwill of the Government or the incumbent parliamentary majority. For this reason all statutory institutions are chimerical; only constitutional bodies, whose authority, autonomy and budgets cannot be eroded by Parliament, can be relied upon.
For example – and this is merely illustrative – a chamber of 100 members could consist of two members from each of the 32 current local authority areas, elected by the people for six-year terms, with one from each area being elected every third year by Alternative Vote; the remaining members could be elected or nominated for three-year terms by socio-economic and vocational groups (the list of organisations having the right to elect or nominate could be determined by a committee of the chamber, within broad parameters of balance and inclusivity specified by the Constitution; it would include, but not be limited to, the major institutions of ‘Civic Scotland’).
 Random lot was used to select town officials in King’s Lynn until the 1835 Municipal Corporations Act; see Dowlen, O. (2009) Political Uses of Sortititon.
The Roman Senate was the council of the ‘great and good’, of the rulers and the ruling class.The Tribunate, in contrast, was – until the final corruption and destruction of the Republic – the self-defence institution of the non-elite plebian order.
 An alternative to covering people’s existing salary would be to pay only the median family wage, but to give those selected indefinite rights of deferral; this would make service attractive to the poor, and inconvenient – but avoidable – for the rich. The principle is simple: Give the poor the opportunity to be heard in the making of laws, and watch how fast things change for the better. To pay the poor to attend, not compel the rich to do so, is, according to Aristotle, the basis of democracy. This would be a step too far, away from a healthy balance, were it not for the fact that such a chamber would be counter-balanced by an elected body in which elites are systematically favoured.
 For a variation on this idea, see Francis, K. (2010)