A Constitution for Everyone: Pluralism and the Limits of Pre-commitment

By W. Elliot Bulmer, Research Director.

Following the Scottish Government’s public commitment to a written Constitution for Scotland in January, the Deputy First Minister has issued a paper setting out the Government’s plans for a post-independence constitution-making process. Although many details of the constitution-making process require further clarification, the general trust of this commitment must be welcomed. It shows that the Scottish Government is thinking beyond the political task of winning a referendum to the more statesmanly task of laying the foundations for a new and better state.

There have been various attempts to draft a written Constitution for Scotland, from that produced by the Scottish Provisional Constituent Assembly in 1964, through the SNP’s own 2002 draft, to the 2011 ‘Model Constitution’ prepared by the Constitutional Commission (all of which can be found here). At this stage, these draft constitutional documents must be regarded as contributions to debate, rather than definitive statements of intent. There will be a lot of heated discussion and tough negotiation to get through before we end up voting on a final, authoritative text.

Nevertheless, the parameters, or basic institutional structure of a workable Constitution for Scotland is gradually becoming clear. Without being prescriptive about it, historical trajectories suggest that Scotland is likely to be governed by a single-chamber parliament elected by proportional representation, with the Queen as a ceremonial head of state (at least initially), a cabinet executive elected by and responsible to the parliamentary majority, an independent judiciary with the authority to enforce set of fundamental human rights based on the European Convention, and a unitary state structure. In other words, on a superficial level, it might look rather like the Constitutions of Norway, Sweden, Denmark, or Luxembourg – which is probably, all things considered, not a bad start.

Moreover, a workable Constitution for Scotland would be likely to reflect the institutional outline agreed in the 1990s by the Scottish Constitutional Convention. This Convention, which brought together Labour, the Liberal Democrats, the churches, the trades unions, and the federation of small businesses, amongst others, rejected the winner-takes all, executive-dominated politics of Westminster. It insisted not only on creating a Scottish Parliament, but on creating in Scotland a different type of Parliament. The resulting Scotland Act of 1998, which is not by any means a Constitution, but does have a quasi-constitutional character, made several long-overdue institutional changes to the archetypal ‘Westminster model’. The most important of these were proportional representation (ensuring that minor parties would get a fair share of seats), fixed term elections (providing immunity from arbitrary dissolution and snap elections), the formal election of the First Minister by Parliament (which removed the head of state’s discretion in the event of a parliament with no overall majority for any one party), and the judicial scrutiny of Acts of the Scottish Parliament for compliance with the fundamental rights recognised in the European Convention on Human Rights.

Whatever else the Constitution of an independent Scotland may include, this combination of proportional parliamentarism with justiciable rights must be at its core. These the basic structural provisions, endorsed by the Constitutional Convention and embodied in the devolved Parliament, seem to enjoy broad acceptance and are likely to provide the foundation for any future post-independence settlement.

The difficulty, of course, is in the detail. The effectiveness of Parliament as a legislative and scrutinising institution, and the balance of power between the government and opposition, can be influenced by such seemingly esoteric details of institutional design as, for example, the way in which committees are chosen, or the process for setting the parliamentary timetable. Here too, the Scottish Parliament has much that might be emulated – although, I’d argue, there is no scope for complacency: an independent Scottish Constitution would have to place additional safeguards (such, for example, as a ‘people’s veto’ referendum) against the tendency of parliamentary majorities to pass hasty, ill-considered, or divisive, legislation.

Scotland’s constitutional debate would benefit from an engaged and informed discussion of how our institutions could be further reformed, in matters of detail, to improve public accountability, to increase representativeness and responsiveness, and to prevent abuses of power. It is particularly important for the Constitution to guard against corruption and ‘authoritarian-backsliding’, whereby the quality of democracy is slowly undermined by laws and practices that violate the spirit, if not the letter, of the Constitution.

In discussions on the Constitution, however, I notice very little concern for improving these core institutional or structural provisions. Instead, discussion is concentrated on the substantive provisions of the Constitution: whether, for example, it bans nuclear power, provides for animal rights, enshrines same-sex marriage, recognises the position of the Church of Scotland, or entrenches (or abolishes) sectarian schooling.

Focusing too much on these substantive matters, regardless of the rights or wrongs of each case, presents a problem; it runs the risk of ‘over-loading’ the Constitution. Filling the Constitution with too many substantive provisions of this nature could undermine its universality, legitimacy and clarity. Taken too far, this could blur the distinction between that which is truly constitutional and those ordinary policy decisions that should be left to day-to-day parliamentary politics, undermining the status of the Constitution as a fairly neutral and generic set of ground rules and transforming it into a partisan manifesto.

I’ve written at length, elsewhere, on why a Constitution is necessary.  It is necessary to provide a process for the legitimate exercise and transfer of governing authority, and to place procedural and temporal limits on that authority. It is necessary to protect the permanent institutions of the State – the res publica that belongs to us all – from being manipulated by the parliamentary majority or the Government of the day. It is necessary to specify, in a way that is binding on both Government and Parliament, what the people stand for – and more importantly, will not stand for – when it comes to democratic practices and the protection of fundamental human rights. A Constitution is not, therefore, an optional extra: it is as vital to a well-functioning democracy as a foundation is to a house, or skeleton to the body. In the absence of Constitution that is above other laws and can be  changed only with recourse to the sovereign people, we have no way of preventing arbitrary power from  falling into the hands of one person or one party; we have no way, in other words, of claiming and ensuring our freedom.

A Constitution cannot, however, be a blueprint for an ideal society. It cannot be a short-cut to utopia, nor a way of conveniently entrenching every progressive policy on one’s wish-list (I say this as a progressive with a very long wish-list).

The reason for this is simple, but often overlooked, especially by those who are most sincere and well-intentioned: namely, that while some common ground might well be found, we all have different ideal societies, and different visions of Scotland’s best possible future. Not everyone thinks as we do. The things that are self-evidently true and right to us, may be difficult and doubtful to others. Worse, these differences are often bitter and heated.  For every person who insists that the Constitution should protect the ’right to fetal life’, there is likely to be another, equally passionate, equally committed, who insists on the ‘right of a woman to control her own body’. These arguments are often highly polarised and very difficult to resolve.

This inability to reconcile such opposing values, visions and priorities makes some people recoil from the whole constitution-making project. Rather than risk making any divisive pre-commitments on substantive policy provisions, they would rather cling to parliamentary sovereignty. I have never accepted that position. Unfettered parliamentary sovereignty is both anti-democratic (because sovereignty rests in the few in Parliament, not in the whole people) and dangerous to liberty (because there is no enforceable limit or restraint on power).

Provided that the Constitution be not overloaded with divisive content, a lack of societal consensus need not be a hindrance to a healthy constitutional democracy. All that is required is a broad and pragmatic agreement on democratic institutions and on fundamental rights. As argued above, such a consensus exists in Scotland – as in many other countries. It is therefore possible, by concentrating on these institutional, fundamental, and broadly agreed provisions, to design a Constitution that enjoys widespread legitimacy, is far bigger than one party or one ideology, and has scope for pluralism and disagreement within it.

This is not to say that the Constitution should avoid all discussion of values, nor that it should exclude all substantive  content. Where a broad and enduring public consensus exists on which to build agreement, there is a strong case for the inclusion of such material. I have argued elsewhere, for example, for the inclusion of socio-economic rights in a Scottish Constitution, provided that these are framed in a way that allows Parliament broad discretion on the ways, means, priorities and extent of their implementation. It does mean, however, that anything ‘too hot to handle’, or divisive, or irreconcilable, should be avoided. Instead of trying to be ideal blueprint for society, the Constitution should establish the free and pluralistic framework in which competing visions and ideals can coexist. Instead of trying to settle every dispute, it should provide a mechanism in which disputes can be discursively and democratically settled.

There should be room under such a Constitution for the grouse shooting carnivore and the vegetarian animal rights activist, for the religious fundamentalist and the secular, for the unreconstructed BMW driving Thatcherite and the organic turnip-knitting Eco-Socialist. These people might vote for different parties, read different blogs, and campaign on different sides of various issues. They might live much of their lives in different social milieu. They might argue vigorously and robustly, and sometimes even change their minds. But they might nevertheless stand side-by-side as fellow citizens, fellow-members of the same res publica, and fellow-beneficiaries of the same Constitution which guarantees the same freedom and the same justice to all.

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