3 May 2014

Our Constitutional Imagination #1: The Mission

The idea has taken on a quiet sort of momentum. Unheralded, it has become the constitutional common sense. An independent Scotland would have a written constitution, a unicameral parliament elected on a proportional basis, an extensive list of entrenched constitutional rights, including social and economic rights, and strong judicial review of primary legislation, giving judges the power to strike down laws which violate fundamental rights in court. At the periphery, places like Orkney and Shetland might be given more extensive powers of self government, but little in the way of systematic thought has been given to the sorts of government structures which the rest of the country should have, beneath the national level.  

We're racing ahead of ourselves, prematurely closing what should be a more open, imaginative conversation. We know that the Scottish Government propose that a constitutional convention with some sort of populist flavour should be charged with drafting the text.  But how can the people and their representatives make a real choice about the constitution they want, without a sense of the options and the alternatives? I worry that we're being drawn, unwittingly and to little advantage, into a vortex of conservatism, and a constitutional vision for the new state amounting to little more than the Scotland Act plus.

When it comes to the parliament, what are the key advantages and disadvantages of not having a second revising chamber? What benefits might we be forgoing if we carry on without one? What different international models might be borrow from and adapt to our circumstances? The Scottish Government propose to make the Court of Session and High Court of Justiciary collectively our supreme court. Why not consider creating a new apex court, or a distinct constitutional court like other countries elsewhere? What are the arguments on either side? The ability to vindicate your basic rights in court has obvious attractions. But what are the potential downsides and ambivalences?

And beneath the current constitutional consensus, there lurk a whole raft of potential conundrums and disunities. A proportionately-elected parliament, perhaps. But is the current electoral system the best? Against what criteria should the alternatives be evaluated? For example, the additional member system maintains a constituency link, but the d'Hondt method for allocating seats and the current regional structure favours larger parties. Should an independent Scotland fiddle with the system? We might, for example, extend the use of STV from our local to national elections. But that too will involve some compromises, privileging one set of values and principles over others. 

We owe it to ourselves, to our politics, to pause and consider these matters properly. If only to ensure that we embark on building the new nation with a clear understanding of what we're about. As a Yes vote in September begins to look possible, we're going to have to give serious thought to these questions, and resist the temptation to be railroaded into adopting an unsatisfactory basic law by conservatism, simple lack of imagination, or awareness of the alternatives. To that end, over the next four months I'll be writing a series of articles here, touring potential constitutional controversies, exploring the arguments on both sides and gesturing towards some of the informative international parallels which might inspire (or warn) us, as we set out composing our basic law. 

As you might expect, I have views and preferences about many of these issues myself, but the primary function of this Constitutional Imagination series is not to proselytise for particular constitutional causes.  It hopes to serve a more cartographic purpose, mapping some of the alternatives in an accessible way, aspiring to whet your constitutional imaginations, and get the cogs whirring. If Scotland is to have a constitution devised to a significant extent by its people, its people must begin to exercise their minds more seriously about the options.  Through this series, I hope to make a modest contribution towards that goal.  Watch this space.

13 comments :

  1. Excellent, and necessary. Perhaps we could include the basic principle that the more distant from the chamber the greater the entitlement to representation. In other words constituencies nearest the chamber smaller than those at the periphery of the country.

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    1. How (if at all) we take account of Scotland's broad geography is a really interesting one. In a past blog, looking at the debate about abolishing the second chamber of the Irish parliament, I punted the idea of counterbalancing the dominance of urban Scotland in the primary chamber by considering a US-inspired upper house, giving less populous parts of the country a stronger voice.

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  2. What started out as potentially 'another dour Scot's doom mongering', quickly morphed into something inspirational and vital, nay, imperative.

    It's almost 'life affirming', that in such a short space of time we have moved from questioning whether an independent Scotland's existence was even possible, to discussing the intricacies of it's written constitution and their alternatives. Possible has become inevitable.

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    1. And the one might (to some extent) help realise the other, Stephen. The "golden city on the hill" vision of independence is all very well - but coming down to brass tacks has its place too.

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  3. Oh, I'm not entirely sure that I want my constitutional imagination whet (tho I do look foward to your series), but I recall that you have previously shown a healthy scepticism towards constitutionalism. Of course, the direst and most chilling manifestation of this is the EU, which will play a similar role within the politics of an "independent" Scotland to that of the American Constitution in American politics. A Scottish constitution will just be a wee cobweb spun under the roof of the cage which already stands over our democratic sovereignty.

    Alas, all roads lead to UKIP...

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    1. Tychy,

      In part, that's why I'm interested in posing questions about these received verities and assumptions. In particular, the rhetoric of UKIP and the Tories on - for example, fundamental rights jurisprudence - has leant the idea of support for strong judicial review a patina of left-wing necessity. If you oppose these ideas and structures, you're Europhobic, right-wing and illiberal. Not so. Sociologically and politically, it is a fascinating thing to consider why, since the 1970s, the attitude of much of the British left towards the judicial has so radically shifted, from suspicion to liberal-humanitarian breathless support for the idea that we ought to trust judges to take political decisions for us. If I can chip away just a little of theUKIPpy veneer, I'll be happy.

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  4. Another "accepted" strand of our new constitution is that we will share the monarchy with England and that everything will carry on much as before. However, for many people there would be a preference for a republic. These are somewhat irreconcilable positions. On the one hand you entrench a particularly privileged family at the apex of society while, on the other, you may aspire to a Mary Robinson or a Michael D Higgins but end up with some tired old political retread like Tony Blair or George W.

    Presidents can be divisive because of their previous political positions and may prove a disappointment if they seek to act as though they had some real power, when what is required is a figurehead to represent the nation. On the plus side however, you can vote for a change of office-holder every few years.

    In passing the monarchy down the generations, there is the problem of the heir sometimes having to hang about for decades while waiting for their dearly loved parent to move on (one way or another). While, at the other extreme, Scotland's problem in the 13th and 14th century was the early death of a monarch resulting in a child ruler who was dominated and manipulated by power-seeking nobles and the nation suffered.

    How could we define an appropriate solution for Scotland? A solution should ideally reflect our history and traditions, while also incorporate the benefits of being able to terminate the incumbency of an unsuitable office holder. In the spirit of discussion I make the following suggestion as a hybrid monarcho-republican symbolic leader for the new Scotland.

    Looking to our tradition of tanistry, we could accept anyone whose grandparent had been our king or queen as a potential new monarch, as the need arose. This would broaden out the pool of talent from which to choose our monarch/president and therefore make it more likely that and acceptable candidate could be found. The main advantages of such an arrangement are that none of the potential monarchs could be sure of their future position and would therefore have to find a job and work in the real world until such time as their opportunity to become the nation's figurehead arose. By moving between branches of the "royal family", the office of monarch would not entrench a dynastic family.

    In terms of process, eligible candidates would submit to rounds of elections, until one of them achieved a majority. To provide the leadership turnover required to ensure ongoing democratic accountability, the chosen monarch would be subject to recall for misbehaviour, on the basis of a petition by a defined number of citizens. In summary, I think the option of a system of tanistry, with democratic election of our national figurehead and subject to recall on the basis of popular demand, is worth consideration. It offers most of the benefits of a republic without losing continuity and tradition.

    The Declaration of Arbroath adopts this approach. In terms of election, it states, "the succession to [King Robert's] right according to our laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our prince and king". In essence, we have a way of going about getting a king and the people have agreed to Robert being made king. The power of recall is also asserted.

    "Yet if he should give up what he has begun, seeking to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own right and ours, and make some other man who was well able to defend us our King".

    As we probably want a well educated and moderately charismatic figurehead for the nation, I suggest that an elected monarchy, based on tanistry and with the citizens having power of recall, would give us as good a chance as any of installing a suitable candidate.

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    1. A further option is that there would be no head of state. The parliament would be sovereign and the traditional duties carried out by the head of state (whatever they are...) would just be dispensed with, or carried out by the head of government.

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    2. While I'm not particularly vexed one way or the other about having a royal family, the current system of primogeniture succession definitely needs to be reconsidered, and the tanistry suggestion is an interesting one with a good historical precedent.

      More importantly, though, in the long term I would hope the Scottish Government can engineer, at the very least, a divergent succession. The opportunities for this have narrowed given that the UK succession is now absolute primogeniture, but long term if we're going to have a monarchy, it needs to be one based here full time.

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    3. An elected king! I think I jested about that idea a few years back, repaying the Americans the complement of history in the other direction. It is relatively easy to see a funny trajectory for the Scottish head of state, given the course that we're on. As I've argued here before, there is a case for republicans, in formulating the new monarchical Scottish constitution to marginalise the role of the head of state as far as possible. No royal assent, no power to dissolve parliament, no royal prerogative to declare war -- zip. If that approach were to be adopted, the monarch would enjoy considerably less power than Michael D Higgins wields as President under the Irish constitution. By keeping Lizzie, at least initially, we may be laying the groundwork of a polity without much time for and without many duties for a head of state to occupy themselves with. Apart from, you know, meeting foreign leaders, opening fetes and the like.

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    4. My concern about the head of government being the head of state is that there is then an incentive to act presidential. The idea of some politician with an agenda as leader of the nation is problematic because, depending on the powers we give them, the president could go off on an ego trip and invade somewhere smaller. If you want a president with no political baggage, then no-one will ever have heard of the candidates and we would have no basis on which to make a choice. Hence my conclusion that having a non politician to do the ceremonial bit to represent the people would be a positive outcome. Surely an aspiring monarch (or three) from a group of ten or twenty vaguely related candidates, would make some effort to demonstrate their suitability for the office while waiting for a vacancy. Anyway, what's wrong with a purely decorative, fete-opening head of state? They could even tour the world as an ambassador of the nation, spreading positive messages about Scotland and not threatening to invade anyone.

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    5. To whit, our Irish friends whose poet president has been touring these shores recently (though seemed conspicuously keen to avoid heading north of the Antonine wall...)

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  5. Precisely. I was thinking of him as I was writing (here in Dublin).

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