Today in 1978 St Lucia became independent. This provides an opportunity to examine the Constitution of St Lucia and to reflect on its lessons for Scotland.
An independent Scotland without a written Constitution would be unthinkable. Just as St Lucia, like every other country which has become independent from the UK in the last 60 years, had a written Constitution ready to go into effect at the time of independence, so Scotland, too, will need a written Constitution from day one. Not to do so would leave a dangerous gap, in which the country would be without any fundamental law, and entirely at the whim and mercy of the parliamentary majority in a single-chamber Parliament.
In order for the Scottish Constitution to be a guarantee of rights, principles and democratic processes, it must be superior to ordinary law, judicially enforced, and amendable only by a supermajority in Parliament plus a referendum. The Constitutional Commission regards this as fundamental, as the right of the people to determine their own fundamental law, through a referendum, is what gives legal effect to the moral principle of ‘sovereignty of the people’ (as opposed to the Westminster doctrine of the sovereignty of Parliament).
The question then, is not whether Scotland should have a written Constitution, but what sort of written Constitution Scotland should have. What can Scotland’ s future constitutional designers learn from the Constitutions of countries like St Lucia?
In terms of its structural provisions, the Constitution of St Lucia is typical of Constitutions of Caribbean democracies. It follows the Westminster model of concentrated majority power, using a disproportional electoral system to skew the advantage of larger parties. At the last elections, the governing party won two-thirds of the seats on just over 50% of the vote, while the opposition, with 46.9% of the vote, won only about one-third of the seats. Independents and minor parties were totally excluded from representation. The only check on the power of the executive-dominated House of Assembly is a weak and ineffective Senate, to which the Government appoints a majority of members.
In all these respects, St Lucia is a warning of what to avoid. Such concentration of power is alien to the emerging Scottish democratic tradition. When the Scottish Parliament was formed in 1999, it was intended not simply to be a miniature replica of Westminster, but a new and different type of Parliament, in which power would be more widely shared. The new electoral system, based on that of Germany and New Zealand, was central to this power-sharing arrangement. It was intended to give all parties an equal opportunity to win seats, to ensure the inclusion of minor parties, and to prevent any party winning an overall majority based on a minority of the votes – in the hope that this would encourage consensus politics, with coalitions and minority administrations being the norm rather than the exception. Procedural changes, including the creation of the Parliamentary Bureau and Corporate Body, stronger committees, and a system of pre-legislative scrutiny, were also intended to promote more constructive better engagement between government and opposition, between front benches and back benches, and between MSPs and civic society.
The extent to which these objectives have been released in Scotland is debatable. While a period of coalition (1999-2007) and minority (2007-2011) government showed that power-sharing could work in Scotland, the election of a single-party majority government in 2011 stretches the notion of Scotland as a consensus-style democracy to its limits. Proportional representation and procedural rules within Parliament, while necessary, are not sufficient to prevent the abuse of power or the manipulation of the political system by an incumbent majority. The checking and balancing role must fall to other, extra-parliamentary, institutions.
This is where Scotland could learn from St Lucia. Despite its two-party system and majoritarian system of government, St Lucia’s written Constitution provides additional, extra-parliamentary, checks and balances, which serve to uphold the distinction between the government (the persons who currently hold executive office) and the state (the impersonal, enduring, institutional authority of the res publica). The most important of these are the Electoral Commission (which upholds the integrity of the electoral process), the Public Service Commission (which maintains the impartiality of the civil service), the Director of Audit (who maintains financial probity), the Parliamentary Commissioner (an administrative Ombudsman), and, most of all, the High Court (which has the authority to rule on the constitutionality of legislation). To preserve their independence from the government of the day, the members of these bodies are, in many cases, appointed by the Governor-General (representing the Queen) in accordance with constitutionally- prescribed processes that require the advice, or the advice and consent, of the Leader of the Opposition, as well as that of the Prime Minister.
Of course, many of these extra-parliamentary institutions already exist in Scotland (either as part of the Scottish system of devolved government, or at the UK level). But their existence rests upon nothing greater than statutory authority, which are subject to the whims of parliamentary majorities. In St Lucia, in contrast, these institutions are established by the Constitution, and are not subject to the legislative authority of the government of the day. A new Constitution for Scotland, such as that prepared as a ‘working model‘ by the Constitutional Commission, should follow the example of St Lucia (and, by the way, most other European and Commonwealth democracies), by putting these extra-parliamentary “integrity branch” institutions on a firm constitutional footing.