Our constitution, July 2012: Sectional Rights & Affirmative Action

(f) Sectional Rights (eg rural rights: a “Crofter’s Charter”)

(g) Affirmative action for women, people with disabilities, ethnic minorities (poverty, religion, gender identity, sexual orientation)

I was distracted by the Olympics, but that’s not the only reason I had trouble writing this post.

It’s because I eventually concluded I did not agree either one should be in a Constitution.

Thomas Jefferson apparently declared once that every Constitution should be rewritten every 19 years. In practice, though a Constitution may be amended, it is unlikely to be completely rewritten.

A Constitution, I think, should be intended to pin down the powers that be – the Parliament, the judiciary, the head of state and the Crown powers, the power that comes simply from being very wealthy and/or owning a lot of land. Pin them down in a way that does not permit of much wiggle-room, and pin them down in perpetuity.

I had to look up “Sectional Rights”, and discovered that this means special rights for “Sections”, or groups – such as crofters, trade unions. I thought about this quite a lot. On the face of it, to give trade unions and crofters special rights in the Scottish Constitution sounds very right: I am a trade unionist, I believe in trade unions.

But for how long would this endure? How long before a lobby group, wealth seeking access to political power, simply decided to reconstruct itself as a group with “Sectional Rights”, giving it special rights which it could make use of in ways not conceived by the original drafters?

In 1215, William Hardel, then Mayor of the City of London, signed the Magna Carta as one of the “Barons” who stood surety for the enforcement of the Great Charter: if the King defied the provisions of the charter, the Barons could meet and overrule the King’s will, applying distraint to his castles and his other possessions if they considered it necessary. Hardel, one may guess, is responsible for a clause that has been the law of the land since then, nearly eight hundred years:

The City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.

The City of London’s independence was once a means by which ordinary citizens could stand up against kings and nobles. But what it has become, over the centuries, is one of the largest concentrations of inethical financial power in the world. And with that political independence, guaranteed by the Magna Carta, and wealth, the City of London can buy more power:

The British financial services industry spent more than £92m last year lobbying politicians and regulators in an ‘economic war of attrition’ that has secured a string of policy victories.

As for affirmative action…

Look, if you are straight, white, male, able-bodied, cisgendered, comfortably off – you are playing the game of life on the lowest difficulty setting there is:

This means that the default behaviors for almost all the non-player characters in the game are easier on you than they would be otherwise. The default barriers for completions of quests are lower. Your leveling-up thresholds come more quickly. You automatically gain entry to some parts of the map that others have to work for. The game is easier to play, automatically, and when you need help, by default it’s easier to get.

If you are on the Lowest Difficulty Setting, you are experiencing affirmative action all the time. You just don’t recognise it. You are more likely to get picked for a job, to become an MP or MSP, to get a promotion, to get a pay rise, to win Masterchef, to pass an orchestra audition.

When this is formally rectified by requiring employers to practice affirmative action, this means requiring them to set aside their presumption that the “best man for the job” will be straight, white, able-bodied, cisgendered, middle-class… and yes, a man – and think about people who don’t belong in those categories. Once enough Higher Difficult Setting people are doing a job that once it was thought only a Lowest Difficulty Setting player could do, one big barrier goes down: disbelief.

I believe very strongly in pro-active affirmative action for political representation. As Katie Ghose, Chief Executive of the Electoral Reform Society, pointed out back in March:

Ignoring half the population is never a good idea. It means we lose the talents and perspectives of a huge cross-section of society and we are the poorer for it. The current lack of women in our parliaments also perpetuates the lack of representation of social class, income, life experience, type of education, ethnicity, sexuality and age in these institutions and sets a terrible example for other sectors.

Our political institutions shouldn’t be carbon copies of society, but when they represent an entirely distorted picture of who we are, this can’t help but create a parliament which is out of touch with the people it serves.

For the politicians and parties trying to build bridges with voters at a time of low trust, this is a massive own goal.

I believe in affirmative action, but I don’t think it belongs in a Constitution. The objective of any affirmative action policy is to create conditions under which it will not be needed. When we routinely have 50/50 representation in Parliament, when the demographic representation of Parliament resembles more-or-less the demography of the country, we will not need – nor should we have – affirmative action in selection of candidates for office. Until then, I think we do.

But I would not want to see political parties forced by a Constitutional requirement to practice affirmative action in their shortlists. I would rather see political parties exposed for what they are in a political environment where equality is taken for granted.

If necessary, a Constitution should make it lawful, where affirmative action is seen to be necessary, to allow it as an exception to rules against discrimination. But I would take this fairly cautiously, too: looking back at the example of the Magna Carta and the City of London, we want to consider what happens to the rules for affirmative action once the need for them is passed.

I may be wrong about this: as I seem to have said repetitively, I’m not a lawyer nor a constitutional expert. But any rule requiring or allowing affirmative action ought to be revisited every five years or so to confirm if the need for it still exists. Unless this could be allowed for in the constitution, I wouldn’t want it there.

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Filed under Disability, Elections, Equality, LGBT Equality, Poverty, Racism, Scottish Constitution, Scottish Culture, Scottish Politics, Women

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