Tag Archives: Scottish devolution

Our constitution, July 2012: local government

“Constitutional recognition of the role and principles of local government”

Scotland has about 5.2 million people spread across 78,782 square kilometers – and 1,222 elected councillors.

From the Jimmy Reid Foundation:

It is time we fully recognised the state of democracy in Scotland. Below the national level, Scotland is the least democratic country in the European Union; some have argued that it is the least democratic country in the developed world. We elect fewer people to make our decisions than anyone else and fewer people turn out to vote in those elections than anyone else. We have much bigger local councils that anyone else, representing many more people and vastly more land area than anyone else, even other countries with low density of population. In France one in 125 people is an elected community politicians. In Austria, one in 200. In Germany one in 400. In Finland one in 500. In Scotland it is one in 4,270 (even England manages one in 2,860). In Norway one in 81 people stand for election in their community. In Finland one in 140. In Sweden one in 145. In Scotland one in 2,071. In Norway 5.5 people contest each seat. In Sweden 4.4 people. In Finland 3.7 people. In Scotland 2.1. In every single indicator we were able to identify to show the health of local democracy, Scotland performs worst of any comparator we could find. (The Silent Crisis: Failure and Revival in Local Democracy in Scotland)

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Our constitution, July 2012: Provision of emergency powers

“Provision of emergency powers in times of war, disaster – with restrictions (eg, parliamentary approval by supermajority, time limits) to prevent abuse”

In a discussion on Twitter on Friday about whether or not the UK already has a Constitution I found there is a consistent argument, which I disagree with, that the UK does have a Constitution, just it’s all over the place in various bits of legislation but which, this is argued, add up not to the equivalent of a Constitution, but a real Constitution, just uniquely British in not actually being written down in one document.

The 1689 Act which places Parliament in control of the revenues (and bans any Catholic prince from inheriting the Crown), the EU treaties binding the UK to the Convention of Human Rights, and so on. This is described more coherently than was possible on Twitter in a 1998 article by “BBC Constitutional Affairs Correspondent” Joshua Rozenberg, citing emeritis emeritus professor of politics and government at Oxford University, Vernon Bogdanor:

As he explains, much of our constitution is to be found in written documents or statutes such as Magna Carta, the Bill of Rights, the Act of Settlement and the Parliament Acts.
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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.

XKCD: Voting Machines
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Our constitution, July 2012: Judicial review of constitutionality of laws

“Judicial review of constitutionality of laws”

I am not a lawyer, and not an American, but there are a couple of areas of US law that I have looked at with queer intensity over many years: and in particular, two areas of the US Constitution and the actions of its judicial regulator the Supreme Court.

Article Four, Section One of the US Constitution says

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Marriage and divorce have always been defined as included among the “public Acts, Records, and judicial Proceedings”: if you are married in the state of New York, so the original Drafters considered, you should not be able to move to Virginia and thereby make yourself unmarried.

After the US Civil War, many states passed legislation banning marriages which they considered to be unethical and unsuitable: cousin marriage. Even today, 30 US States have laws that make it illegal to marry your first cousin, or allow it only with specific exceptions (if one or both of you is sterile). Predictably enough, people who grow up in states where cousin marriage is banned, tend to think of it as some kind of weird icky relationship, bad for the children. (Where have I heard that before?)

First cousins marrying is culturally approved in some countries, culturally disapproved in others: first cousins can’t get married according to Catholic canon law (which is based on Roman law). But the US is the only country which, in the 19th century, up and passed laws against first cousins marrying – which are still in force in 30 states.

So what happens if you are first cousins who marry in a state where that’s legal and move to a state where it’s not? Continue reading

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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.
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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”.
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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.

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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. Continue reading

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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
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Our constitution, July 2012: Head of State

“Defining role and duties of Head of State as a ceremonial figurehead”

There are really only three questions to be asked about a Scottish Head of State, but they have very complicated answers.

The SNP have claimed they wish the Queen to remain as Head of State if the independence referendum goes Yes in autumn 2014. Certainly this is not a dealbreaker for me: I don’t know how I’ll vote, but whether or not Scotland becomes a republic is not a factor in that decision. Harking back to 1603, the SNP say they wish to dissolve the Union of Parliaments but not the Union of Crowns: a circumstance that applied to James VI and I, Charles I, Charles II, James II & VII, the joint and multi-numbered monarchs William III & II and Mary II, and Anne.

That the current monarch is both Elizabeth I of Scotland and Elizabeth II of England matters enough to some people that the Post Office carefully do not use the EIIR logo in Scotland because if they do, it gets vandalised. It’s not a non-issue.

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