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.

Our constitution, July 2012: Rights to the Commons

Today, Andy Wightman reports, the Scottish Government announced

the establishment of a “Land Reform Review Group” that will oversee a “wide ranging review of land reform in Scotland”. If this happens it will be very worthwhile.

However, the remit and membership of this group are yet to be agreed with Scottish Ministers and it is unclear how wide the remit will be. If it is simply to undertake a technical review of the Land Reform (Scotland) Act 2003, it will be of very limited value when the real issues concern inflated land values, affordability of housing, succession law, tax avoidance, secrecy, absentee landlordism, theft of common land, land registration laws, common good etc. etc. etc.

So Andy is crowdsourcing definitions of “land reform” and outlines of the remit of this Land Reform Review group in the comments at his blog – go, read, join in.

1. Enhanced constitutional rights (e) Rights to the Commons (eg water, access to countryside)

You may remember, before the council elections earlier this year, an Aberdonian pensioner, Renee Slater, registered a mannequin, whom she named Helena Torry, to stand in the Hazlehead, Ashley and Queens Cross ward. When it was discovered that Helena Torry was not entitled to be a council candidate, the notice of poll for that ward was republished, deleting Helena Torry, and Grampian Police charged Slater with an offence under the Representation of the People Act 1983.

What you may not remember, unless you live in Aberdeen, was that this wasn’t just a silly joke or a satiric commentary on the quality of council candidates these days.

Union Terrace Gardens are a public park opened in 1879: part of the park is planted with elms that are about 200 years old, about two and a half acres of sunken gardens, planted with elms that are nearly 200 years old. From early in the 21st century onwards, there had been plans to develop a centre for contemporary arts in Aberdeen, in partnership between Peacock Visual Arts and Aberdeen Council. The development had been designed by Brisac Gonzales, had been budgeted at £13.5 million, and would have included a restaurant and a gallery. Full planning permission and £9.5 million of public funding from various sources had been secured.

Our constitution, July 2012: Environmental rights

1. Enhanced constitutional rights (d) Environmental rights (eg prohibition of nuclear power)

It is customary for capitalism to regard the environment as an infinitely renewable resourse. The dangers of this custom have been made repeatedly clear, but the custom still continues: whether hunting sperm whales to near extinction or logging forests or pumping oil.

Left unchecked, climate change will accelerate. The use of fossil fuels, a growing demand for energy and increased deforestation will escalate emissions of carbon dioxide to potentially irreversible levels. Uncertainties in the scientific understanding of global warming do not warrant a ‘wait and see’ attitude and there is much that we can do now that makes both environmental and economic sense. (Scottish Environment Protection Agency)

It’s an idea so far only in utopias

Our constitution, July 2012: Cultural Rights

The British are second only to Americans in being the kind of foreigner who is an international stereotype for never understanding any language but English. (An English secretary, who understood French pretty well, travelling with her boss, who spoke only English, took advantage of the situation to eavesdrop on the English company’s competitors discussing the terms of the deal in French, sure that neither boss nor secretary could understand them. True story.) Still, the stereotype holds up alarmingly well: over two-thirds of the UK population are English-speaking monoglots: and thanks to Doctor Who and Star Trek, this is practically an interstellar stereotype.

“To create a constitutional order that reflects a broad public commitment to a more inclusive, egalitarian, and communitarian way, and to mark Scotland out as a ‘progressive beacon’, the following additional provisions might be considered:”
1. Enhanced constitutional rights (c) Cultural rights (ie for Gaelic, Scots)

Cultural rights isn’t just language, of course, but language is likely to be the most contentious of the cultural rights issue, both by those who take for granted it should be English and those arguing for Gaelic and/or Scots.

More and more the international festivals in Edinburgh in August seem primarily for tourists – the days are long past when you could get home from work, decide you felt like going out to a show, and pick something from the Fringe programme that was handy to get to and would cost a fiver or less for an hour or two – and when concessions for students, under-16s, unemployed, and pensioners meant half-price, not “so we’ll knock a quid off the £12 or more we’ll be charging you”. But once upon a time that was do-able: when I was reading Hamlet for Higher English I could and did go to all the perfomances one year on the Fringe, and it didn’t cost my parents their life savings the way it would if an enthusiastic schoolkid got the idea of doing that this year. We should keep the Scottish BBC funded by licence fee. We should be investing in written and spoken Scottish culture.

I also liked Kenneth Roy’s trenchant finish to his three-part dissection of the current state of Scottish newspapers in the Review, earlier this year:

The Scotsman needs to win back all the broadsheet people – the ones who take those decisions, the others who influence them – and move out from there to the idealists and teachers and artists, the many thousands of us who are alienated by the state of our mainstream media. We are there for the taking. We wait for something better. We long for it every day.
Can this be done by the Johnston Press? Clearly not. They talk not of newspapers, but of products. They have failed journalism and they have failed journalists. Their grave is fit only to be danced on. I suggest the Eightsome Reel. I issue this challenge to the wealthy patriots of Scotland, of whom there are many. Get out there, form your consortium, convince us of your honourable motives, and make a reasonable offer to this lot’s bankers to take a great newspaper out of their hands. Better still, let’s have a trust along the lines of the Guardian’s, safeguarding the paper’s interests and supported by all who care about Scotland.

But what language is our culture?

Our constitution, July 2012: Public ethics

“Code of Conduct / Public Ethics”

There are, according to the Committee on Standards in Public Life, seven principles of public life – selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.

I have to say – having taken part in many protests in Edinburgh over the years – that I have never felt afraid of Lothian and Borders Police. I warily arranged a phone contact before going to the SPUC OFF protest, because I did not know for sure that SPUC would stay non-violent and away from us and I wasn’t confident that the police would necessarily pick out the prolife aggressors over us feminist hippy weirdos with our hand-painted signs: but I was sure that so long as no one started any aggro, Lothian and Borders Police would simply allow both sides to have our peaceful protest. And I was very glad they were there at the BNP protest at Meadowbank.

But I have felt afraid on several protests in London – because I was part of a large crowd engaged in peaceful public protest, and the Metropolitan Police seemed by that to assume I was the enemy. They did not seem to regard any part of the crowd of protesters as the people whom it was their obligation to protect. We were, at best, there by their tolerance: and I only felt at risk in any crowd when I saw the Met Police in their riot gear.

I heard by unsubstantiated rumour that when the Metropolitan Police offered to send a detachment to Scotland to “help” police the G8 protest in 2005, the Scottish police forces gave the Met a joint dubious look, muttered “aye, that’ll be right”, and politely declined the offer, on the grounds that they wanted to keep the peace, not stir up trouble.

The UK Committee on Standards in Public Life was set up in October 1994 and issued its first report in 1995, under the chairmanship of Lord Nolan. It was established in order to investigate concerns about the conduct of members of parliament, after allegations that MPs had taken cash for putting down parliamentary questions. The Committee Report set out seven principles of public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. The ‘Nolan reforms’ established a new post of Parliamentary Commissioner for Standards (see ombudsman) whose job was to maintain the Register of Members’ Interests and investigate the conduct of MPs; to set up a House of Commons Committee on Standards and Privileges; and to set down a Code of Conduct for MPs. In 1998 the Committee issued a report on the funding of political parties, which rejected calls for state funding. — Alistair McMillan, Oxford Dictionary of Politics

There is a Ministerial Code, which is – we discovered with Jeremy Hunt – harder to break than the Enigma Code. Apparently the unwritten “constitution” of the UK requires ministers to be accountable to the Prime Minister, not to anyone like the “independent” adviser on the ministerial code:

The current holder of this well-paid and undemanding sinecure, Sir Alex Allan, tried to convince the select committee that he would be proactive and would not be sidelined.

Giving evidence, he said he would quit if he were marginalised, and promised not to be anyone’s “poodle”. He even came up with proposals for how he could conduct inquiries more quickly than his predecessor, Sir Philip Mawer. But he was clear that the prime minister had no plans to change the fundamental tripwire: that only the prime minister could ask him to conduct an inquiry.

Arguably, constitutional propriety requires ministers to be accountable to the prime minister, and not to a Whitehall bureaucrat. But it is notable that neither the cabinet secretary nor the prime minister have been keen to pass any issue to the independent adviser. Indeed, David Cameron has never referred a single case, making one wonder how Allan spends his days.

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)

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.

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: 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?

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.