Dissenting Radical

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

Category: Constitution

Book Report of the Week

Antipodes

This week’s reading has an antipodean theme. I ordered these two books as a complementary pair. Although there is some difference of emphasis they each: (i) provide a descriptive account of the existing constitutional system in the country; (ii) engage in a critical analysis of its strengths and shortcomings; (iii) discuss options for reform, and (iv) culminate in a proposed new constitutional text. In other words, right up my street.

The book on New Zealand (Palmer, G. & Palmer, M. Unbridled Power (4th ed), Oxford University Press, 2004) is probably, by a slight margin, the better written of the two. It has a deeper descriptive study of how the existing institutions and processes work. However, its proposals for constitutional reform are rather conservative, very parochial, and a bit thin. Sadly, there’s almost no engagement with wider Commonwealth constitutional developments, and that means that many beneficial reforms that are tried and tested elsewhere are dismissed out of hand.

The book on Australia (Harris, B. A New Constitution for Australia, Routledge, 2002) is less detailed on the workings of the existing constitutional system. but much more radical and innovative in its proposals for reform. In part, this is because it discusses the broader sweep of modern Commonwealth constitutionalism and isn’t afraid to seek solutions to Australian constitutional problems by borrowing and adapting from elsewhere.

I’d give the Australia book 7/10 and the New Zealand book 8/10, but the former I would recommend to a much wider readership – it’s useful to anyone who is interested in constitutional reform in a comparative way, even if they are not very interested in the specifics of the Australian case, whilst the latter I would really only recommend to people who want to learn more about the intricate details of New Zealand.

Draft Constitution for the Commonwealth of England

The broad left in the United Kingdom, north and south of the border, is caught between three conversations. One conversation is about tackling poverty, rolling back the power of the corporate and financial oligarchies that now seem to dominate both policy-making and public discourse, reducing economic inequality, and opposing austerity. This conversation focuses on bread-and-butter issues: banking regulation and housing costs, environmental protection and wages, working conditions and public services, schools and hospitals, library closures and council redundancies. This conversation is championed by the Corbynite wing of the Labour Party, as well as by groups such as UK Uncut, the New Economics Foundation and others, who seek – while rejecting the dull collectivism of 20th century socialism – to promote a more humane and communitarian vision of society, in which we each help secure the economic well-being of all our fellow-citizens by the pooling of risks and the sharing of rewards.

The second conversation is about democracy and participation, accountability and transparency, corruption and privilege. This conversation focuses on the structures and processes of government, and on the relationship between the state and the citizen. Its concerns are electoral reform and referendums, localism and civil liberties, privy councils and legal aid. This conversation comes most easily to the Liberal Democrat wing of the broad left (what remains of it), the Greens, the Electoral Reform Society, Liberty, and the sort of people who – like me – remember Charter 88 with a certain degree of fondness.

The third conversation is about the future of the UK and its place in the world. Should England, Scotland, Wales and Northern Ireland remain unequally yoked together in this lopsided Union? Should we be moving towards ‘home rule all round’, with a view to creating a ‘loosely united’ kingdom? Or should the United Kingdom be brought quietly and gently to its natural end, so that each of its constituent countries can take their place as free, equal and friendly neighbours? Should we – whoever ‘we’ are – be in or out of the European Union? Should we retain the power to nuke all of human civilisation out of existence? Or is it better just to concentrate our efforts on neo-colonial wars in far-off sandy places with plenty of oil? This conversation divides people who might find themselves on the same side in the first two conversations. People who agree on opposition to austerity may be bitter enemies over the future of the United Kingdom, on leaving or remaining in the EU, or on replacing Trident.

Despite the efforts of some to keep these three conversations separate, and thereby to maintain the boundaries of party tribalism, my contention is that they are inextricably interlaced. There is a clear and unavoidable connection between the core nature and identity of the state, its form of government, and the type of policies it will tend to pursue. A war-forged dynastic imperial state, which exists only as the remnant of a once-mighty empire, will tend towards a closed, oligarchic and increasingly paranoid form of government, and will pursue policies that favour the maintenance of existing hierarchies of wealth and privilege; being founded in conquest and in the subjugation of the peasantry, it will be bellicose towards others and remorseless in the harrying of its own poor citizens. On the other hand, a nation-state that is born of peace and compact, is founded upon common-right and justice, and is constituted on civic, democratic, principles, will usually pursue policies that promote the common good.

This interlacing of the conversations, and this intimate connection between the identity of the state, its form of government, and the policies to be pursued, was most clearly expressed in the Scottish independence referendum. The Yes alliance that arose during the referendum campaign started to connect the dots. The SNP, the Yes Campaign, the Radical Independence Campaign, the Scottish Green Party, Labour for Independence, Nordic Horizons, National Collective, Women for Independence, and Common Weal, all recognised that state-identity, constitution and policy were closely connected. These organisations appreciated that the constitution and 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. The unjust, short­sighted, elitist, London­centric policy outcomes of the UK were deemed by the supporters of independence to be an inevitable product of its ramshackle and oligarchic political structure.

Independence, to its advocates, was seen as a way of changing not only the locus, but also the nature, of government, through the creation of a new state built on a democratic constitutional basis. This is why the SNP made a commitment to a written constitution for Scotland such an integral part of the independence campaign. What was on offer was not just the rejection of rule from Westminster, but a more fundamental reassessment of the Westminster way of ruling. The imperial, dynastic, oligarchic, warlike British state would be replaced by a peaceful, democratic, rights-respecting Scottish state. From this change in inner nature, a change in external behaviour – in terms of policy processes and outcomes – would follow.

In England, breaking away from the UK and creating a new state has hardly seemed like a viable option. Instead, all the effort is focused on who will be the next Prime Minister. But those who expect the UK 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. 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.

The year 2015 is the 800th anniversary of the signing of the Magna Carta, an event of great historical significance in England. The ruling establishment have attempted to use this anniversary as a way of showing that all is rosy in the garden, and has been for a very long time. Rather than smug congratulation, the people of England should use this anniversary as an opportunity for deep introspection. Why is it that the UK is celebrating an 800­year­old royal charter, and not – say – the sixtieth anniversary of a decent democratic Constitution? What have we achieved since the middle ages, in the sphere of constitutional advancement? What guarantees does the citizen now have, against the abuse of power, corruption, and other forms of misrule? If the people of England would think on these questions, and reflect on the very inadequate answers that the establishment gives, then they should come to the conclusion that they, like the Scots, are ill-served by the institutions of the UK as currently constituted.

A progressive and democratic English national movement against the establishment is the one thing that can bring the rotten tree down. England’s best hope – and the best hope for the left in England – is to reject the British imperialism that is institutionally embodied in the UK, and to search instead for a new, democratic, post-imperial, sense of English identity. If the English left could be induced to give up its misplaced loyalty to the institutions of the UK, and if it could join together its three disparate conversations, such that bread-and-butter issues and constitutional issues are treated in a holistic way, then there would be a chance for a democratic revival across these islands.

A civic English nationalism would reject the imperialist superiority of British nationalism, as well as the all xenophobia, chauvinism and racism that has in the past been associated with it. Instead, it would embrace an inclusive political community united by democratic values and by a sense of decency and the common good. It would not even require abandoning a residual notion of Britishness, understood in a cultural and geographical rather than political sense. As independent countries, England and Scotland (and Wales, even Northern Ireland, and maybe Cornwall too if they so wish) would continue to share a common physical space and would continue to be closely connected by social, historical and economic ties. It is simply that that connection would no longer be based on domination and dynastic loyalties, but instead on the equality of peoples, friendship, mutual respect, genuine democracy, and co-operation.

The first shoots of such an ‘English spring’ can be detected in the resurgence of interest amongst parts of the English left in the radical democratic constitutionalist movements of the Civil War era. Beneath the last three centuries of Britishness, pomp, capitalism and empire, lies another England – an England in which the claims of prelates and princes are drowned out by the folkish prayers of the Lollards and the steely pikes of the Levellers fighting for the ‘Good Old Cause’.

It is closer today than it’s ever been since 1649, when the abolition of the monarchy and the House of Lords brought England to the brink of throwing off the Norman Yoke. But the events of 1649, while providing inspiration, also offer a salutary warning. Sadly, the written Constitution which would have made the Commonwealth (republic) of England last – the ‘Agreement of the People’ – was not adopted, and the rest is the history of reaction by the landowning classes. The lesson learned from 1649, and all other revolutions, is this: it is not enough to ding down Babylonian and Pharoanic monarchies, you also have to build up sound republican institutions that will establish and preserve a free and civic way of life. Cut down the old tree, by all means, but make sure that there is a new one, firmly planted by the waters.

With that in mind, I’ve drafted a democratic republican constitution for England. The draft is based on what might be described as ‘neo-Leveller’ principles. It envisions a democratic, socially just, peaceful and equalitarian England, in contrast to the oligarchic, privileged, militaristic and hierarchical United Kingdom. It sets out to imagine what a reconstituted England might look like, were the Norman Yoke at last to be cast off, and the barons of the City, Oligarchy, and the Establishment, reduced from their mighty stations. In short, it conceives of a ‘new England’: no longer the last remnant of a dying and increasingly dysfunctional empire, but now the home of a flourishing, free and thriving republic.

The basic features of the draft Constitution are as follows:

(1) It is a written, codified and entrenched constitution, which proclaims itself a supreme law, is judicially enforceable, and can be amended only be a special process (requiring in most cases a referendum).

(2) It would vest sovereignty in the people, as the source and ultimate controller of all powers.

(3) It envisages England as a ‘Commonwealth’ (republic) with an indirectly elected figurehead president as Head of State.

(4) It would establish a unicameral Parliament, elected by proportional representation for four year terms.

(5) It would enshrine European Convention rights as justiciable fundamental rights.

(6) It would also proclaim a range of social and economic rights which, although not directly judicially enforceable, would be politically binding on the Government.

(7) It would allow members of the public to recall their members of Parliament.

(8) It would make provision for the optional use of electoral quotas to promote gender parity and to ensure the inclusion of marginalised sections of society in Parliament.

(9) It would limit the Prime Minister to a maximum of two (four-year) terms of office.

(10) It would enable the people to repeal legislation by means of abrogative referendums.

(11) It would establish a novel system of participatory democracy designed to empower citizens through deliberative ‘People’s Assemblies’. These would enable panels of citizens, selected annually by lot, to discuss public affairs and to hold their elected representatives to account.

(12) It would relocate the capital to the North of England as part of a plan to redistribute the power geographically as well as between the classes.

(13) It would abolish the City of London Corporation.

(14) It would place constitutional restraints on the use of military force.

(15) It would provide for the disestablishment of the Church of England.

Some of these provisions are very standard – the usual stuff of contemporary constitution-making; a few, such as the institution of randomly selected People’s Assemblies, are novel.

It should be noted, finally, that this draft Constitution is presented simply as a spur for debate. It is offered merely as an illustrative example, and certainly not as a prescription. Most people in England, even those who would quite like a written constitution, have never actually seen a constitution, and have little idea what one looks like. In my experience, presenting a draft text, even if it is a somewhat hypothetical one, helps to clarify the debate, turning abstract notions into specific constitutional terms that can then be constructively argued over. Having thrown this text out for debate, it is up to the commons of England, whose country is still in the hands of the descendants of a conqueror, and whose sovereignty is as yet unvoiced, to make of it and do with it what they will.

constitution-of-the-commonwealth-of-england4_WEB(<– Downloads .pfd – distributed on a Creative Commons basis; I retain the copyright, but you can use it and share it for non-commercial purposes with attribution. Thanks.)

Good Parliamentarians

In a democracy we need our parliamentarians to be both leaders (people with vision, principles, wisdom, and a genuine passion for the common good) and representatives (people who share our way of live, our values, our hopes, our fears, and our experiences). These should be the criteria by which parliamentary candidates are selected. Parties will rightly differ on the sorts of principles they espouse and the sections of society they represent, but they should all be seeking to recruit, and to offer to the people, candidates who are worthy of our suffrage.

There are good candidates in all parties, but sadly they are few – too many, it seems, are selected not for their character or abilities, but for their pliability. The result is a parliament of lobby-fodder, who put partisan politicking above public service and who vote as they are told; and that, in turn, means that laws and policies are not subject to sufficient debate, scrutiny and consideration, and we end up with bad decisions and costly mistakes.

The 2015 Parliament has serious work to do. We are in need of a root and branch reform, the scale of which has probably not been seen in living memory. So whichever party we are inclined towards, we should all demand parliamentarians with brains and backbone – people who will stand up for principles, and who will stand up for parliament as an institution.

Unfortunately, the current first-past-the-post electoral system makes it difficult to insist on good candidates, because we cannot vote against a weak candidate of the party we support. This, combined with the phenomenon of ‘safe seats’, results in lazy, characterless, insipid, unprincipled candidates who cannot even be bothered, when out canvassing, to explain their policies to voters.

 

There are institutional reforms that might be beneficial in bringing a better quality of candidate to the fore. For example, in any future reform of the electoral system serious consideration should be given to the case for allowing intra-party choice.

There’s a lively debate on the relative merits of AMS (Additional Member System, as used for the Scottish Parliament) and STV (Single Transferable Vote, as used for local Council elections in Scotland), and in the past I’ve usually been more inclined to AMS, but on this point STV seems to have the advantage: in principle, it enables voters to choose between competing candidates of the same party, which forces candidates to distinguish themselves from one another instead of just hiding behind a party label.

Another possibility is to use candidate-selection primaries that would force candidates to engage with the voters, even in safe seats, rather than just being imposed by the party hierarchies. However, there is are very few examples of primaries being used in parliamentary democracies, and there is a legitimate fear that primaries might increase polarisation and populism without necessarily leading to a better quality of candidate.

Whatever changes are made to the electoral system, this is a much deeper issue than one of institutional design. It is a matter for the political ‘flesh’ rather than the legal ‘bones’ of the system of government. What’s needed is not only a constitutional revolution but also a revolution in political values, such that a party would be ashamed and embarrassed to put forward a candidate of mediocre abilities and low ethical standards whose only qualification is that they are safe, reliable, obedient ‘lobby-fodder’.

Magic Kingdom

If you haven’t read ‘The Magic Kingdom: Property, Monarchy and the Maximum Republic’ by Dan Hinds, get a copy and read it.

Dan Hinds is possibly the first English writer since Tom Paine to frankly expose how the British Oligarchy works, and how the monarchy, Parliament, the City, the BBC, the security apparatus, and the elite schools all sustain the same corrupt, parasitic, class of financial oligarchs – and why the lack of a proper Constitution is at the heart of it.

This is without doubt one of the best books I’ve read on the state of contemporary British politics. It is short, accessible and passionate. It also shows how the civic republican traditional of thought can provide both a damning critique of existing institutions and a potential way ahead.

He also – rarely, for a London-based writer – understands Scottish independence and what we were trying to achieve in the foundation of a new state.

Seriously, read this book.

Ruritanian Medievalist Nonsense

New Rule: From now on, whenever you hear or see the words, “the British Constitution”, you have to mentally replace them with “Ruritanian Medievalist Nonsense”.

e.g. 1. “There’s no need to reform Ruritanian Medievalist Nonsense, it works well as it is.”

e.g. 2. “Ruritanian Medievalist Nonsense provides stability and continuity.”

e.g. 3. “The Queen has lots of powers, but she does not actually use them, because Ruritanian Medievalist Nonsense says so.”

You get the idea.

(Although, I should add, that it always pains me a little to use ‘Medieval’ in a pejorative sense. We have a lot to learn from the middle ages.)

Constitutions and Public Ethics

Traditionally (in the 18th and 19th centuries) constitutions were mainly concerned with: (i) fundamental rights [What are the limits of the state?] and (ii) the basic structures of representative government [How is the state to be governed?].

In the 20th century, the scope of constitutionalism was extended to include: (iii) socio-economic rights and principles [What will the State provide for its citizens, and what is the relationship market and the state?] and (iv) statements of identity, nationhood and culture [Who are we, where have we come from, where are we going, and what are the values that unite us?].

We are also discovering another important function of the constitution, which is defining and upholding public ethics [What are the standards of behaviour that we demand of those in public office, and how can we ensure that those in office exercise their powers in a fair, non-corrupt way?].

We see in recent (post-1945) generations of constitutional design, we see a stronger emphasis on institutions like ombudsmen, auditors, independent electoral commissions, public service commissions etc, which seek to ensure that power is used in justifiable, rational, non-partisan, non-corrupt ways.

But I think the time has come to go further; perhaps more constitutions should, for example, regulate campaign finance and political donations, and prohibit conflicts of interest. This would help tackle these problems. It would make clear the boundaries between what is and what is not acceptable behaviour, and provide mechanisms for the enforcement of ethical standards in public life.

Some moves in this direction have already been taken. The 2010 Constitution of Kenya, for example, includes extensive provisions on public ethics, as did the 2013 draft Constitution for Fiji, and the 2009 Constitution of the Solomon Islands. We do not generally find such provisions, however, in the constitutions of established Western democracies, where it was long assumed that active parliamentary politics, backed by a free media and the rule of law, would be sufficient to guard against corruption.

Such hubris and complacency can no longer be entertained. It has become clear, especially since the 2008 financial crisis, that Western democracies are characterised by gross, systemic corruption: the distortion of policy by the interests of corporate financial capitalism and the richest crust of the population. If we are serious about building a democracy that works for everyone, and that serves the common good not the private interests of those in and near to power, then we must tackle these problems.

Strong constitutional rules on matters such as campaign finance and political donations, on public ethics and on conflicts of interest, may a useful tool – alongside others, such institutions of direct and participatory democracy – that the people can use to help recapture the state from narrow, oligarchic elites.

No hero-worship, please, we are democrats

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This is all getting a bit hero-worshippy for me.

I like Alex Salmond. He’s the first decent leader Scotland has had for more than three centuries. On the whole, he did a good job in running a moderately progressive devolved administration in tough financial times. He strengthened the country. He led us into a referendum that was quite narrowly lost, but which has nevertheless changed the terms of engagement.

For this he deserves credit. But it is credit as a fellow-citizen. He differs from us in function, in that is (was) First Minister, but not in status. He is not ‘the boss’. He’s not omnipotent, or irreplaceable, or infallible.

The picture above, circulated by a fan of Salmond on the day of his stepping down as First Minister, represents an anti-democratic and non-civic form of adulation. It is that hero-worship that leads to exactly the sort of top-down, closed, autocratic politics that we in the democratic movement for Scottish independence are trying to avoid.

So honour him, respect him, admire him – but do not put him on too high a pedestal. He has his flaws and his failings, like all of us. If we mean to enjoy not only independence, but also freedom, democracy, and a form of government that respects the common good (rather than one in which particular persons are elevated to a position of dominance) we should always remember that in a free country, where we enjoy a free and civic way of life, we are governed by our equals.

(That said, ‘High Protector’ is a much better title than ‘Governor-General’, and if we were to become independent, it’s not a bad way of describing a non-executive, symbolic, ceremonial Head of State – an office for which Salmond would be admirably suited.)

Smith Commission

We are faced with many challenges, which often seem to overwhelm us. It seems like the rich and rapacious few are gnawing ever-deeper into our social fabric. It’s important, in confronting this, to get to the root of it all: oligarchy. We are ruled by corrupt institutions that foster and protect greedy interests.

We can oppose policies – like fracking, privatisation, TTIP etc piecemeal – but we will always lose, because they – the oligarchs – have the power. The unifying objective must be democracy: the creation of a state that, because it is under the control of the people, serves the people, and not just the rich and powerful. In a sense, most our problems are ultimately constitutional, in so far as they are a product of the ill-distribution of power.

One of the great things about the independence movement was that it recognised the principle of popular sovereignty and offered a democratic constitutional alternative to the oligarchic UK-state. There seemed to be a window of opportunity for setting the Scottish state on a right foundation of the common good, as opposed to the private interests of a few.

That’s what makes the Scottish Government’s submission to the Smith Commission so disappointing. It’s all about powers, and says nothing about democracy:

“The Parliament should have control of its own affairs, including its electoral system and procedural rules – matters which are currently reserved to Westminster. The Scotland Act 2012 transferred some limited administrative responsibilities and regulation–making powers for Scottish Parliament elections. But this falls far short of full legislative responsibility for its own elections. The Westminster Parliament legislates about its franchise and procedures. The Scottish Parliament should do the same.” (From the Scottish Government’s submission to the Smith Commission).

That leaves me cold. No. No parliament should have that power. It’s then a law unto itself. It provides no guarantee. The fact that westminster can do that is part of what’s wrong with the UK. Last thing in the world we’d want to do is replicate it. It is a complete betrayal of the principle of popular sovereignty.

It doesn’t have to be this way. Even if independence is, for the time being, off the table, Scotland could still adopt a radically democratic constitutional charter that would help strengthen democracy. The Greens, in their submission to the Smith Commission, have even sketched out some initial ideas about how this might be done.

Last post for the Liberal Democrats

Photos from the Liberal Democrat party conference show rows of empty seats. The party that trrid for forty years to cast itself as the reforming voice of British politics, and which, in that time, crept slowly up from about six seats to sixty, is finished.

But I don’t gloat over the demise of the Liberal Democrats. I lament it. I used to support them. I was attracted by their commitment to civil liberties and to electoral and constitutional reform, to peace, to environmentalism, and to pragmatically centre-leftish economic, fiscal and industrial policies. I wanted to see a third force in UK politics that would break the two-party duopoly and offer a real alternative – one with democratic and humane values.

I supported them until about 2007, when they refused to go into coalition with the SNP in the Scottish Parliament – we could have had a three option referendum much sooner. I felt that their refusal to even talk about independence was short-sighted and petty – and I joined the SNP soon after, because they were the only party that combined a centre-left stance with a clear commitment to independence (which by then had become the only realistic option as far as I was concerned, given the inability of the UK to reform itself along democratic lines). 

After Nick Clegg became leader, I saw the LibDems drift to the right and morph into the other two – and squander all its moral authority in the process. The phrase that kept echoing around my mind was ‘if the salt loses its savour, wherewith shall it be made salty again.’ By 2011 it was clear that they were fatally diminished, not only in Scotland but also across northern England.

The liberal democrats – the heirs of names such as Charles James Fox, William Gladstone, David Lloyd George, John Maynard Keynes, William Beveridge, David Steel and Paddy Ashdown – are finished. They’re done. They’re through. They are balloney without the mayo. And that’s a sad thing. I’m pleased that people have rejected what the liberal democrats have become, but sad for what they were and might have been. It’s worrying that their place as the party of anti-establishment protest has been usurped, in England, by the far-right nutty nutcases of UKIP. That’s what first-past-the-post and a right-wing press will do to you.

Thankfully, in Scotland we have proportional representation, so we have a wider and more effective choice. We have other options – SNP, Greens, SSP etc. But we wouldn’t have had proportional representation, for the Scottish Parliament and for local Councils, were it not for the patient and long-suffering insistence of the Liberal Democrats. For that, at least, we owe them some gratitude.

The Constitution and the Common Good: the case for Social Rights.

The Scottish National Party has been committed to a written constitution for a very long time. This commitment is not unique: it has traditionally been shared (albeit in a UK-wide, rather than Scottish, context) with the Liberal Democrats, some Labour members, Charter 88, and many other groups who oppose the centralisation of power and monopolisation of privilege in the British State.

A liberal-democratic constitution will necessarily, almost by definition, include provisions for the protection of fundamental legal and civil rights. These rights, broadly covered by the European Convention, are essential to allow the development of a thriving, open, and pluralistic society, and to protect individuals from outright oppression. They include such staples as freedom of speech, publication, assembly, association, and religion, as well as freedom from slavery and torture, and a guarantee of legality, due process, and the right to a fair trial. There will be, I predict, little dispute about the importance of these rights, or the importance of embodying them in the supreme constitutional law of the country.

Potentially more controversial are ‘second generation’, ‘social’, or ‘socio-economic’ rights. It is on this issue that individualist market-liberals and those with a more communitarian approach to democracy will differ. Market-liberals will argue, firstly, that these rights – such as the right to public healthcare, a living wage, fair working conditions, or education – are not ‘constitutional’ in nature, secondly, that their enforcement is likely to be drag judges into policy-making, and thirdly, that the inclusion of such rights turns the Constitution into a manifesto, unduly narrowing the legislature’s freedom of action.

The first of these objections – that these rights are not truly constitutional – can be dismissed. Socio-economic conditions are ‘constitutional matters’, in the widest sense of the term, because they concern the distribution of power, influence, wealth, prestige and opportunity in society. In an Aristotelian sense, they distinguish polity from oligarchy. 

What sort of democracy is it, if the rich are able to dominate public life, and the poor are  excluded? What sort of liberty is there, if many do not have the basic resources, security or dignity of life and condition necessary to be full members of society? Where is the ‘common good’, if ‘the least of these my brethren’ are marginalised, exploited or dehumanised? What sort of ‘commonwealth’ is it, if wealth is engrossed by a tiny minority, and if the common people are left to shift for themselves?

Besides, a Constitution is not just a legal document that defines justiciable rights. It is also – I’d say more so – a political document that defines the values and aims of a state. Liberal-neutralists may shudder at the idea of a state having any values and aims, but for a civic-republican or Christian democrat this is less problematic, especially as these values and aims may be grounded in widespread agreements and updated from time to time by amendment. It is entirely appropriate to make certain constitutional commitments on matters of principle, which, being widely shared amongst the political community, proclaim what a country stands for, and what it will not stand for.  Having a commitment in principle to universal public education, for example, could fit in this category.

The second objection is more problematic. There is, indeed, a danger that judges become too much involved in questions of policy if they are called upon to enforce socio-economic rights. In so doing, their purported independence may be compromised. The delivery of socio-economic rights often requires funding, and elected Parliaments, not courts, should be the primary forum for determining the allocation of funds and the prioritisation of competing, possibly conflicting, demands. Moreover, a Constitution is supposed to be an enduring document, intended to last for decades and generations to come, while specifics of socio-economic policy will have to change with changing times.

However, it is not impossible to overcome this objection. Constitutional commitments to socio-economic principles need not bind Parliaments too tightly, and can be framed in ways that make it clear that Parliaments, and not the courts, are responsible for their translation into policy.

One option is to put socio-economic rights in the preamble, rather than in the main body of the Constitution. The preamble to the French Constitution of 1946 was deliberately intended to be a statement of principles, without legally binding the legislature or transferring authority to the Courts (although, under the Fifth Republic, this preamble is now deemed to be justiciable).

In some countries, including Malta, Ireland and India, fundamental civil-legal ‘rights’, which are justiciable (enforced by the courts), are distinguished from socio-economic ‘directive principles’ which are only morally binding on Parliament. These directive principles therefore belong to the political, rather than legal, part of the Constitution – they politically proclaim, but do not legally enforce, a commitment to social values.

Another solution is to list socio-economic rights alongside other, civil-legal rights, and not to exclude them from ultimate judicially enforcement, but still to word them in such a way as to make it clear that they really bind Parliament. These provisions are framed in ways that make it clear that courts are ordinarily expected to defer to parliamentary discretion. The SNP’s 2002 draft Constitution takes this second approach. Sections 14 (property rights), 15 (working conditions), 18 (restriction of monopolies), 20 (housing), 21 (healthcare) and 22 (education) of Article VI are framed in terms of obligations on Parliament to enact appropriate legislation to give practical effect to socio-economic rights.

The third objection is that the inclusion of socio-economic rights turns the Constitution into a mere manifesto, a wish-list, rather than something enduring, unifying, and truly fundamental to the governance of a state. Certainly, it is important that a constitution does not over-reach itself. There’s no point in having a Constitution that reads like the manifesto of the Radical Green Left Collective – it would not be acceptable to the broad mainstream of Scottish society. Constitutions that work and last cannot be ideologically tied to one ‘side’ of public opinion, but must remain rooted in the broadest possible general consensus of society.

That said, a constitution that entrenches neo-liberalism, or that results in progressive legislation intended to tackle economic inequalities being struck down by the courts, would not be legitimate either – at least not in Scotland, which sees itself (mythologically or otherwise) as a progressive, communitarian, egalitarian country. 

A Constitution within the broad mainstream of Scottish public opinion might therefore acknowledge and protect the basic principles of a ‘social’ democracy – the welfare system, the NHS, public education, the regulation of monopolies, land access rights, progressive taxation, and so forth. It could do this while still leaving room for differences of opinion on the relative importance, ordering, and means of delivery, of these rights, to be argued over by different parties.

I, for one, would take pride in the idea that the Constitution of my country enshrines universal access to health care, free at the point of delivery. I see it as a commitment to civilised, humane, values – a commitment to the common good. Yet whether this commitment is delivered by a single public provider (UK, Spain), a single public payer (France, Canada), or a universal state-assisted insurance (Germany, Netherlands) model is, as far as I am concerned, is a pragmatic issue of ordinary politics.

To summarise, the inclusion of socio-economic rights is necessary and practicable – they reflect values and principles that are genuinely ‘constitutional’ and fundamental to our society. Yet it is important to prescribe these rights only at the level of principle, while leaving Parliament free to implement and enforce these rights, and to balance and deconflict them, according to the usual processes of ordinary politics, in which different parties will have different aims and priorities.