Tag Archives: SCC21st

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: 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.
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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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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.
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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.

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Our constitution, July 2012: Fixed term parliaments

“Fixed term, four year Parliaments: dissolution only if government cannot be formed or if Parliament votes for its own dissolution by a two-third majority.”

This is a part of the Constitution that would probably pass with least discussion. Fixed-term Parliaments are mandated in a devolved Scotland by the 1998 Act, and it is broadly agreed in constitutional democracies outside the UK that the power to dissolve Parliament and set the date for the next General Election is not something that should be under the control of the government of the day: it’s one of the powers of the Crown that accrues to the Prime Minister in the UK’s decidedly unwritten Constitution.

Margaret Thatcher used it in May 1983 to call a General Election two years early on the feelgood factor from the Falklands War: John Major used it to not call a General Election that he knew he wouldn’t win until literally the very last minute, April 1997 (and so did Gordon Brown in May 2010, despite Tony Blair’s having set the example of calling an election every four years). David Cameron will probably do the same, unless he starts a small war somewhere for electoral good value.

Looking back at the old Scottish Parliament, it was of course no more representative of the people then the old English Parliament: the Three Estates of the old Scottish Parliament (the lordis of counsall and sessioun) were the prelates (the bishops and abbots: the Catholics were removed in 1567, the Protestants removed in 1688); the lay tenants-in-chief or parliamentary peers (comprising three degrees of nobility: dukes, earls, and lairds – a laird or “lord of parliament” would have been the owner of a landed estate which was not part of a village or town or royal burgh); and the Burgh Commissioners elected by the royal burghs. From 1592 onwards there were also Shire Commissioners, selected by the lairds of the shire, and from 1603, royal office holders: I think the Universities also had parliamentary representation, but I don’t know how that worked. The three Representation of the People Acts in 1832 for England and Wales, Scotland, and Ireland, were the first steps towards making Parliament democratically representative.

The Parliament of Scotland was always unicameral and the collective term used for the members was traditionally the Thrie Estaitis even when there seem to have been four or five. (Mostly from A Short History of the Scottish Parliament.) The representatives from the Royal Burghs were the largest estate within the Parliament, and the 1707 Act of Union specified: “That the Rights and Privileges of the Royal Boroughs in Scotland as they now are Do Remain entire after the Union and notwithstanding thereof”.
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Our constitution, July 2012: independence and devolution

I decided in at the end of June to do a series of posts through July on my thoughts about a Scottish Constitution, using as a framework an excellent summary I was given at A state fit for the 21st Century.

I am not a lawyer. I am not employed by otherwise connected with or speaking on behalf of the Constitutional Commission. I welcome objections, caveats, better-informed comments clarifying or correcting any misunderstandings or mistakes I’ve made, references to other sources of information, and if you start blogging about this too, links to other blogposts.

As for the independence referendum – I’m undecided. As yet neither Yes Scotland nor Better Together have particularly convinced me. I don’t know how I’ll vote in autumn 2014. I’d like a campaign for a constitution to be independent of either campaign, and not tied to any party.

Aim:

“To establish the Scottish State as a stable, effective parliamentary democracy that upholds fundamental rights and serves the common-weal of the people.”

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