Make Constitutional Law Boring Again

Few English people think about the constitutional settlement of the nations of the United Kingdom. And ordinarily, this doesn’t matter at all.

The United Kingdom of Great Britain and Northern Ireland has an uncodified constitution: not a single document thoughtfully and carefully produced to give a country a good start in life, but a collection of legislation and even judicial rulings made over the centuries as the British people clawed our way into being a functioning modern democracy from a starting point of feudal monarchy. The 1689 Bill of Rights (and for Scotland, the 1689 Claim of Right) is part of the UK’s constitution: so is the 1998 Human Rights Act.

A year ago today…

I voted No.

Am I sorry, ashamed, apologetic that I voted No?

Never in this life.

I don’t think anyone should feel apologetic or ashamed or sorry for how they voted in the referendum: we came together in the largest turnout since the 1950s, after two years of intense debate. Each of us voted, and. as agreed, we abide by the majority. Everyone who voted in the referendum voted rightly, whether it was Yes or No.

If I’d known on 18th September 2014 what I know now on 18th September 2015, would I have voted differently?

Guest Blog: Constitution First

This guest blog is by Stewart Robinson: “a time served Civil Servant, which should not be held against him! He is married with one daughter and lives in East Lothian, where his hobbies include overthinking everything and grinding his teeth.”

Stewart Robinson writes: During the indyref campaign I made lots of new friends, all sharing the same passion for independence, but I have to share my thoughts with my new friends in the knowledge that some of you will not wish to remain my friend after you read this post. I respect all opinions, even those I cannot agree with, but I will understand if you cannot live with mine.

To begin with, I think we must accept that we lost the vote fair and square. Yes, there was BBC bias. Yes, there were scare tactics from the Better Together side, but we also got our point across often enough. Sadly though, our case just wasn’t strong enough to convince the wavering voters to support the idea.

The March for Independence

The speculation about numbers for tomorrow’s march is quite amusing, because both sides seem to be refusing to give a number.

Jeff Duncan told the Evening News:

“This is the first of three marches. We’ll be holding another one on almost exactly the same day next year and we’re hoping to quadruple the numbers we get tomorrow. Then in September 2014 we’ll be holding what we expect to be the largest march.”

He added: “We know there are going to be thousands coming along based on the number of seats we have sold on the coaches, but there are also those organising their own transport. Plus we imagine plenty of people already living in Edinburgh will attend, so we can’t really put a definite number how many will actually be marching. Only Saturday will reveal that.”

This is the March for Scottish Independence. (Jokes about Frodo and Bilbo Baggins – tomorrow is Hobbit Day – regretfully omitted.)

This is the first march of its kind: there is really no clue how many people will think they should or feel they can. It takes a certain degree of enthusiasm, even for a cause you support, to go on a march: the usual rule-of-thumb reckoning is that for every one person who goes on the march, there’s probably 10 at home who support. This is why the two million people who marched against the Iraq war all across the UK (over a hundred thousand in Glasgow) were such a warning that Labour should have heeded in February 2003.

The organisers will have been asked by the police to give some idea of how many will show up, but they’re not obliged to disclose that estimate to anyone else. “Yes in 2014” gets about 30%-40% in opinion polls, but no one knows how many that will represent in actual willing-to-show-up-on-Saturday-morning-and-march numbers (gay marriage gets about 65%, but rallies in support of marriage get about 200 people).

Partly it depends how beleaguered supporters of a cause feel – how important they feel it is to get out there and tell the world. In so many ways, the Yes Scotland campaign’s habit of talking only to itself is against them there: many Yes Scotland supporters don’t seem to talk much with anyone who doesn’t already agree with them, allowing themselves the impression of wide support, suggesting a march is unnecessary.

The National Collective of artists and creatives for Scottish independence has a

Guide to Marching – a simple selection of 12 basic suggestions that can help make our march a symbol of a modern, progressive and creative movement that wants to imagine a better nation.

Okay.

I’ll bet more Scots went to London to march for fox hunting than @thesnp get at their “massive” march for Indy this weekend

— Iain McGill (@IainMcGill) September 20, 2012

(There have been several Countryside Alliance marches in London, and as I confirmed, Iain McGill has no idea how many Scots showed up to any of them.)

Obviously, the Yes Scotland campaign hope that they will at least get enough people that the rally in Princes Street gardens at the end won’t look too silly in overhead visuals. Choosing the Meadows for a starting point also suggests a certain confidence in numbers (and funding – you don’t get to use the Meadows for free).

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: 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: Oil reserve

“Oil reserve / Long Term Investment fund”

We live in an oil-dependent world, and have got to this level of dependency in a very short space of time, using vast reserves of oil in the process – without planning for when the supply is not so plentiful. The Transition Handbook

Most of us, most of the time, don’t think about how dependent we are on oil, a finite and diminishing resource, because it is too bloody scary to contemplate. If you want to read some overviews of how societies collapse when the resource they depend on runs out, Jared Diamond’s Collapse: How Societies Choose to Fail Or Succeed is a good place to start.

Extracting oil from under the North Sea will get more and more difficult but more and more desirable:

Those who say the oil is running out overstate rather than fabricate: more than half the local reserves have already been extracted and what’s left will be harder and more expensive to pump out. In a manifesto festooned with pictures of windmills looming out of the water, the SNP laid out a plan to succeed North Sea oil with a giant renewable-energy industry.

Switching from oil to renewable energy is an immensely sensible plan (too sensible for partisan attack). But Scotland has oil. And mention of oil in the Scottish Constitution is likely to cause problems wider than simply “thanks very much, we’ll take our share of the NHS and the BBC and be off now”.

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.