Our constitution, July 2012: Electoral Commission

“Electoral Commission – independent, non-partisan body to oversee integrity of electoral process, and to ensure conformity with campaign finance legislation”

Today at the People’s Gathering, organised by the Electoral Reform Society, we were discussing how to get more people involved in politics – in voting turnout, but also in what goes on between elections.

This week I have been reading Greg Palast’s thoroughly unnerving book The Best Democracy Money Can Buy. The first chapter deals with how the Florida Presidential election was stolen: tens of thousands of voters banned from the electoral rolls, tens of thousands of votes not counted, the net result to give Jeb Bush’s older brother the Presidency even though Al Gore had actually won the election.

Now, of course, the US uses electronic voting machines, so everything’s all right then.

Our constitution, July 2012: European Convention of Human Rights

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

“Guaranteed rights based on European Convention”

I love the Universal Declaration of Human Rights as a religious person might love Scripture.

Drafted in 1948, sixty-four years old on 10th December this year, it is still a radical and inspirational document.

I find the Convention for the Protection of Human Rights and Fundamental Freedoms less inspirational and less radical, even though it’s not even 5 years younger.

7 reasons why I’m against DevoPlus / DevoMax

1. There is no democratic mandate for a referendum for anything but independence.

The SNP said in 2007 that they would hold a referendum on independence for Scotland after they’d won two elections. They won in 2007 and in 2011, so they have a clear democratic mandate to hold a referendum on independence in this term of the Scottish Parliament, and the Scottish government has a right to set the date for the referendum.

There is no democratic mandate for a referendum on devo-plus or devo-max. This wasn’t part of anyone’s manifesto or pre-election statements.

2. There is no clear definition of devo-plus or devo-max.

Our constitution, July 2012: Judicial independence

“I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.”

“Judicial independence: judges appointed by independent commission having legal and lay representatives; judges removable only for misconduct etc”

From the Judiciary of Scotland website:

In Scotland, the principle was emphasised as long ago as 1599 when the Lord President of the Court of Session declared that the judges were independent of the king, “sworn to do justice according to our conscience”.

Our constitution, July 2012: Ombudsman and Auditor-General

“Independent accountability mechanisms: Ombudsman and Auditor-General”

The Auditor-General is an office established to examine the government’s accounts. The South African Constitution provides that the Auditor-General is to:

annually produces audit reports on all government departments, public entities, municipalities and public institutions. Over and above these entity-specific reports, the audit outcomes are analysed in general reports that cover both the Public Finance Management Act (PFMA) and Municipal Finance Management Act (MFMA) cycles. In addition, reports on discretionary audits, performance audits, and other special audits are also produced. The Auditor-General tables reports to the legislature with a direct interest in the audit, namely Parliament, provincial legislatures or municipal councils. These reports are then used in accordance with their own rules and procedures for oversight.

The Ombudsman Association defines ombudsmmen as:

an independent and impartial means of resolving certain disputes outside the courts.

They cover various public and private bodies and look into matters after a complaint has been made to the relevant body.

Our constitution, July 2012: ensure civil service impartiality

“Public Service Commission to ensure civil service impartiality”

There is a story about Clare Short when she was a senior civil servant, working as Private Secretary to Mark Carlisle, who was then Education Secretary in Margaret Thatcher’s first Cabinet, that after working hard all day on Tory education policies, she would relieve the frustrations of the day by telling the Minister exactly what she thought of the Tory policies – an end-of-work break that apparently they both enjoyed.

The story does credit to both – Margaret Thatcher noted in her diary that when she had to dismiss Carlisle in her September 1981 cabinet reshuffle, he left with “courteousness and good humour” – and highlights the British civil service tradition of total political neutrality in office.

Our constitution, July 2012: Scottish Defence Forces

“Provision for Scottish Defence Forces under control of Scottish government”

Today in the Scotland on Sunday, Euan McColm takes up his keyboard and goes to battle for the Scottish military

One of the ways in which die-hard SNP members kid themselves that their party is still in the slightest bit radical is through their approach to defence. The Nationalists’ broad “nukes out, troops home” mantra may, from time to time, chime with a wider public mood. But it’s a stance adopted in the days when the notion that an SNP politician might ever have to seriously consider the defence of an independent Scotland was laughable.

One of the big things that will change for Scotland if we become independent: The UK is about 22nd in the world for population size. But Scotland, which is between five and six million people, will be somewhere between 110th and 118th for population size. Our neighbours on this list won’t be France and Italy any more; they’ll be countries the size of Nicaragua or Denmark or Eritrea, Kyrgyzstan or Slovakia or Finland, Singapore or Turkmenistan or Norway.

Everyone knows this – the SNP keep pointing at Norway and Denmark, European democracies the size of Scotland, to prove that bigger isn’t necessarily better.

But one change which this sizing down makes inevitable, which I think any realistic person will have to accept:

Countries the size Scotland will be don’t go to war for fun.

Our constitution, July 2012: Prime Minister of Scotland

Before we go on to the “Formal election of Prime Minister of Scotland by vote of Parliament”, the next item in the Constitution, Newsnet Scotland has the 4-part video of the Constitution Commission meeting from Thursday online now, if you want to watch it. (My only criticism of the evening was that I think each speaker on the panel should have been restricted to five minutes each at the start – ten minutes took up a full hour of the ninety minutes scheduled. Still, they were good speakers.)

The First Minister of Scotland is nominated by the Scottish Parliament to the monarch for appointment. The Scottish Parliament must nominate a First Minister within 28 days of an election, or else the parliament dissolves and another election has to happen.

The Prime Minister of the UK is appointed from the House of Commons by the monarch, who must appoint the MP most likely to command the confidence of the lower house.

The Prime Minister in the UK wields the powers of the Crown. (This is why I am a republican, and the main reason I think the Head of State question matters: it’s not because showy pageantry bores me.)

If we continue with the SNP’s preferred option, the Queen as Head of State in Scotland, removing the Union of Parliaments but retaining the Union of Crowns, then the First Minister levels up to Prime Minister and acquires the Crown powers for Scotland.

Crown prerogative enables governments to fill a huge range of senior appointments in the armed forces, the security services, the civil service and the judiciary, without reference to the people’s representatives, though also, in most cases, without anything more than a token reference to the monarch whom they are said to be serving. It is still the Queen’s commission, the Queen’s pardon when prisoners are released, the Queen’s pleasure when they are jailed sine die, Queen’s Counsel to plead in the courts, royal commissions to inquire into weighty issues, a royal charter to govern the BBC and a Royal Mail to carry the post. But the will which drives the institution is that of Downing Street, not the palace.

In a recently-published report, Democratic Audit (funded by Joseph Rowntree’s Charitable Trust) found 92 areas of “continuing concern” and 62 areas of “new and emerging concern” with British democracy. The Democratic Audit carries out a “comprehensive and systematic assessment of a country’s political life” to answer two basic questions:

how democratic is it and how well are human rights protected?

Some aspects of the Democratic Audit’s concerns are outwith Scotland’s concern (for example, the report regards the SNP as “one of the smaller parties” and mentions England’s uncertain status in the Westminister Parliament) but mostly, this applies to Scotland as much as to the rest of the UK:

Britain also ranked below average compared with other wealthy democracies in the OECD and the EU, and even worse when measured against Nordic countries for issues from party membership and turnout to corruption, press freedom, income inequality and trade union membership.

This was “further evidence of the areas in which [the UK] falls short, not of an abstract ideal of democracy, but of what has been demonstrated to be possible,” adds the report.

Democratic Audit measures the UK based on “the two basic principles of representative democracy”:

popular control and political equality: that is, how far do the people exercise control over political decision-makers and the processes of decision-making? And how far is there political equality in the exercise of that control?

The idea behind the Scottish Parliament’s formation was that no one party would ever be able to gain majority control. Granted that the SNP had, in two elections in succession, special circumstances that won them more seats – the guddle of the ballots in 2007, and in 2011 of course the electoral meltdown of the Liberal Democrats (and the failure of the Scottish Greens to stand constituency candidates) – still, it takes a capable party to win the seats even with political circumstances blowing your way.

The First Minister of Scotland is appointed by the Scottish Parliament in exhaustive ballot, and the original thought was that, rather than as at Westminster the leader of the party becoming the Prime Minister when their party wins Westminster’s majority vote, the First Minister has to be acceptable to MSPs across party lines. There was a presumption of coalition government in the Scottish Parliament.

The First Minister has a closer connection to be democratically elected than the Prime Minister. We vote for MSPs: MSPs vote for First Minister. The Prime Minister must win election as an MP, but usually from a safe seat: the Prime Minister is elected in internal party elections in which the general electorate have no say, and appointed by the monarch if their party has won a majority of seats in the House of Commons.

Does this democratic deficit in government have an effect on the democratic audit?

Stuart Wilks-Heeg, the Democratic Audit report’s main author:

“Over time, disengagement skews the political process yet further towards those who are already more advantaged by virtue of their wealth, education or professional connections. And without mass political participation, the sense of disconnection between citizens and their representatives will inevitably grow.”

If First Minister levels up to Prime Minister on independence, we must have constitutional limitations on what the Prime Minister can do. Responses of “But what do you imagine Alex Salmond would do?” are at best charmingly naive: it does not matter if you consider the man given the powers of the crown is the most trustworthy man in the world, who would never fail to respect the sovereignity of the Scottish people, never use the Crown powers shabbily or dishonestly, still: no one should have those powers without constitutional limits.

Or so I think. Take the Scottish Constitution survey.

Sadiq Khan, shadow justice secretary at Westminister and former chair of human rights group, Liberty, said:

“What I find really troubling is there’s no shortage of big issues which we must get to grips with – the economy, the future of our health, education and social care systems, our environment – many of which grab the attention of the public, but there’s a disconnect when it comes to party politics.”

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Index of all posts in the Scottish Constitution series
Take the survey

Our constitution, July 2012: public scrutiny of legislation

“Public scrutiny of legislation; right of committees to conduct hearings, pre-legislative consultation; active petition system; guaranteed rights of opposition.”

You may ask, why do we need to make such a point of this? This is what we already do in Scotland. Why would we stop?

“There are two things in the world you never want to let people see how you make ‘em: laws and sausages.” - Leo McGarry, The West Wing, “Five Votes Down”.

I haven’t heard from Better Together voters who don’t like the idea of a constitution for Scotland.

But Yes Scotland voters who don’t like the idea of drafting a constitution for Scotland prior to the referendum or eve independence day, usually say something along the lines of: “Don’t you trust the SNP?” and when I say no, suggest that this is partisan. (Examples in comments at Our constitution: beyond yes and no and A New Claim of Right for Scotland.)

But I don’t trust any political party that far. Or any government. There is nothing special about the air of Scotland that makes politicians more anxious to have legislative work completely open to scrutiny: it’s just that the law requires it. The law that was passed at Westminster: the Scotland Act.

Public scrutiny of legislation

In the Scottish Parliament, this is a three-stage one-chamber process, described in Chapter 9 of the Parliament’s Standing Orders:

The introduction of a Bill in the Scottish Parliament (SP) is roughly equivalent to the First Reading stage of a Bill in the UK Parliament, but more is required of the member in charge of the Bill in the Scottish Parliament, in the sense of accompanying documents. This is in order to give the members of the committee more information.

Stage 1: After the committee has prepared the legislation, the Parliament will debate and vote on it and if agreed, it will proceed to Stage 2. The latter part of Stage 1 is equivalent to the Second Reading in the UK Parliament.

Our constitution, July 2012: Treaties and war

Carl Sagan, Cosmos, 1980: War is murder writ large.

“Parliamentary control of treaties and war-making power, etc”

Today, a Higgs boson particle was discovered – a scientific discovery that confirms the Standard Model physics uses to explain the structure of the universe, first proposed by Peter Higgs of Edinburgh University. This is a great day, and not one I would have wanted to use to discuss treaties and war.

Carl Sagan, Cosmos, 1980

There is no other species on the Earth that does science. It is, so far, entirely a human invention, evolved by natural selection in the cerebral cortex for one simple reason: it works. It is not perfect. It can be misused. It is only a tool. But it is by far the best tool we have, self-correcting, ongoing, applicable to everything. It has two rules. First: there are no sacred truths; all assumptions must be critically examined; arguments from authority are worthless. Second: whatever is inconsistent with the facts must be discarded or revised. We must understand the Cosmos as it is and not confuse how it is with how we wish it to be.