A Model Constitution for Scotland is a challenging publication. To pay the work an even greater compliment, it is a necessary publication. In attempting to construct a Scottish Constitution – from first principles to a full draft – Bulmer poses the greatest question for an Independent Scotland: how will Scotland be governed? To answer this question requires us all to collectively consider the structure of our new democracy and how state power can serve both liberty and equality. A Model Constitution raises this question and presents a starting point for the immense task of writing Scotland’s Constitution. For this reason A Model Constitution is necessary reading for all those debating Scotland’s future.
Section 1: Values of Power
“Scotland is a free, sovereign and independent commonwealth. Its form of government is a parliamentary democracy based upon the sovereignty of the people, social justice, solidarity and respect for human rights.”
The first section of A Model Constitution searches for Scotland’s democratic values. It provides a compelling and concise evaluation of liberal democracy alongside a brief introduction to constitutionalism.
Bulmer’s case is one of balance. A ‘mixed constitution’ seeks to guard “against the corruption of the few and the apathy of the many.” A subtle critique of elites and public opinion is embedded within this.
Power cannot be restricted to either order in isolation. Thus the constitution must empower both the “brightest and the best” (the few) citizens as well as incorporating the citizens on mass. The accomplished lead through an “aristocracy of service”; while all of society benefits from participation in democratic life. These values ascribe state power with a ‘moderate purpose’. This motif runs throughout A Model Constitution.
The power of the state is said to exist for the common good and the benefit of all citizens. Power is most effective when collective and collaborative. For instance, Bulmer states that the Constitution must go beyond a legal writ to embody the practice of freedom. This means empowering citizens through every day processes of local democracy, direct democracy and consultation with special interests. Yet this is tempered by realism. The case for a ‘Normal European Democracy’, warns of “the opposite danger of being too radical or ambitious” and rejects those “irresponsible to propose an untried utopian scheme”. Scots must, therefore in Bulmer’s phrase, reject dreams of an ‘Athens of the North’.
The desire to embody “a moderate reformist approach” to our democratic values is most likely a wise one. It is linguistically inclusive. However it is perhaps useful to note that moderacy and radicalism are largely subjective.
The scale of democratic reform that we require stems from how we view democracy’s modern problems. We must ask whether the values of parliamentary democracy, as it stands, empowers citizens and foster civic trust. If democratic institutions are currently surrounded by public cynicism, distrust, falling voter participation, unequal access to representatives and a narrow political class (and there is substantial evidence to this effect) then substantial reforms are merited. A Model Constitution alludes to a deepening crisis in democracy, yet simultaneously rejects the possibility of reconciling this crisis within a Scottish Constitution:
“If democracy is to survive, it appears we might soon have to develop a fourth generation of constitutional technology. The source for this technology might come from a rediscovery of the mechanisms from ancient and medieval republics, not least the use of the random lot, rotation in office & town square democracy…However, none of this is yet established; if we desire to create a workable and well-proven Constitution for Scotland, then we must, for the time being, file these ideas away in the ‘wait and see’ box.” (pg.48)
The values of power within a Scottish Constitution therefore remains open to contestation. Is a Scotland built upon “parliamentary democracy” enough to construct firm democratic institutions or do we need a ‘fourth generation’ democracy now?
Section 2: Institutions and Impacts of Power
Section two constructs the constitution. It is an explanation of each of the eleven articles. Within this progression the structure details 1) the nature of the independent parliament and 2) how a constitution can establish a framework for major challenges. The most substantial – but by no means all – of the challenges discussed include the military, local democracy, liberty and equality.
Similar to Bulmer’s commitment to ‘moderate’ values, his conclusion on the structure of a new Scottish parliament is highly significant. While weighting the wide variety of parliamentary systems (unicameral, bi-cameral, Presidential) Bulmer reaches two conclusions: 1) “a single chamber Parliament with unlimited legislative power is simply not a viable option” and 2) “a unicameral parliament with a ‘minority veto’ system is best.” This question of establishing a second chamber is one of the most significant democratic questions that an Independent Scotland would face. It concerns the ability to cement consensual government, prevent abuses of power and most significantly shall determine how power is distributed.
Three significant mechanisms are presented: a bicameral system via a ‘Scottish Senate’, an elected President with the right of veto and a ‘minority veto’ system. The third option grants 40% minorities the power to delay legislation for further scrutiny. This, in theory, encourages cooperation and consensus between the government and opposition parties; and is the proposal that Bulmer supports. This position is best considered alongside the ‘consultative assembly’ raised at the end of this article.
However Scotland’s institutions are structured after Independence, the immediate question will be how these operate with their acquired powers. Taxation, welfare and the military will be reconfigured. The Constitution will be a major source for framing these responsibilities.
Bulmer suggests important reforms of both military governance and local government. Currently the Westminster system invests powers of foreign relations and war-making in the crown. They are in reality exercised by royal prerogative through the Prime Minister.
“ ‘imperial’ powers in so few hands has damaging effects: during the last ten years, Scottish soldiers have been killed and wounded in Afghanistan and Iraq for no tangible public benefit, in spite of the anti-war stance of most of the Scottish people.”
All democratic nations place such powers in their parliament: for wars and for overseas deployment. This is the structure that would apply to an Independent Scottish Defence Force.
Reforms to local government are also suggested by Bulmer. Scotland’s 32 local authorities are cumbersome. They are a barrier to true, local participation, as suggested by a recent Reid Foundation Report. The alternative is to devolve power to the closest possible level by the principle of “subsidiarity”. This jars with our political culture which often desires national monogomous solutions for all areas. Bulmer claims that local choice is real freedom: the freedom to be different, to show initiate, to act without waiting for superior orders. Subsidiarity values citizens’ power by realising that the best check on the authority of central government is local action, accountability and participation. Independent power for Scotland is not enough; there must also be power for Scotland’s communities.
Section 3: The Purpose of Power: Liberty, Equality
The final part, prior to Bulmer’s draft, considers how the Scottish Constitution can project power in two crucial areas. How will it entrench rights of liberty and how will it foster social equality?
The question of liberty is clear. A constitution can turn back decades of civil liberties erosion within the UK. Without a Constitution arbitrary power has built a vast surveillance network, lengthened detention without trial, and allowed the police to commonly abuse their social privilege. Bulmer considers the inclusion of the European Convention on Human Rights within the constitution as a starting point. The Liberal Democrat ‘Freedom Bill’ is a model for establishing liberty in an Independent Scotland; although it is only the constitution itself and how we adapt it which guarantees liberty in the long-term.
Action on civil liberties and legal protections can be mirrored in social and economic rights. Firstly, Bulmer justifies their inclusion by stating that the distribution of wealth impacts upon the distribution of power. Property is a political and constitutional issue.
He provides four substantial reasons for this: 1) Concentrations of wealth give well funded interests an unfair advantage in political competition – just look to the billion dollar Presidential elections for example! 2) Extremes of gross wealth and poverty breed jealousy, distrust, violence and extremism. Therefore it makes for an unstable community. 3) The poor are marginalised. They are less likely to be informed and participate in politics. 4) Social class destroys democratic equality as it creates orders of arrogance and submissiveness.
These ideas are based on the heritage of civic republicanism.
“The social-economic dimension to freedom cannot be ignored. What sort of democracy is it, if the rich are able to dominate public life, and the poor are marginalised and excluded? What sort of liberty is there, if many do not have the basic resources, security or dignity of life and condition necessary to be full members of society? Where is the ‘common good’, if ‘the least of these my brethren’ are marginalised, exploited or dehumanised? What sort of ‘commonwealth’ is it, if wealth is engrossed by a tiny minority, and if the ordinary people are left to shift for themselves?”
The case for social-economic action and consideration within the Constitution is a strong one, but do rights go far enough? There are principled and pragmatic grounds for scepticism. Inequality can be considered the realm of political elections and government rather than the Constitution. Even if the Constitution supports social-economic rights, how can a court enforce them?
Undoubtedly, equality matters. Yet does the real solution not lie in the distribution of power rather than constructing a ‘dead letter’ constitution? The right to health care or education may incentivize policy-making and encourage a culture of social goods – but it will never change a managerial or elitist political culture which is prepared to sell these off amidst crisis and confusion. The students of England have learnt this to their cost.
The question for equality, for liberty, for democracy is simple. Is a Constitution built upon “parliamentary democracy” enough? For some a clique of parliamentarians is oligarchy by another name. Or, as John Stuart Mill termed in the inverse positive, “nothing is more desirable than the inclusion of all in the sovereign power of the state.” If that is so, how can power be more accessible?
Bulmer’s example is a ‘Consultative Assembly’ which is “intended as a partial substitute for the role of a second chamber. The Consultative Assembly provides a means for the social-economic interests of society to express themselves in a public forum.” This is innovative. It has no legislative or veto power; yet has three advantages over a single parliament structure. It provides an extra public forum for legislative advice and deliberation; it is a place for ordinary people to involve themselves in public life; and it is a place for civic consensus.
Bulmer: “Representatives of workers should sit with businessmen and professionals, artisans with the farmers, sceptical secular academics with clergy.” A Consultative Assembly is essential so that various interests can learn to “understand and appreciate other interests.”
The precise proposal is for a 60 member chamber, with 20 each from the Trade Unions and artisan/craft guilds; alongside 10 commerce/small business members, and 10 academic/clergy members.
Could such a chamber involve members of the public? Could such a chamber have effective rather than nominal political power as a second chamber? Do we need a powerful People’s Assembly?
Invigorating Scottish democracy raises these questions and challenges the values of power, the institutions of power and the purpose of power. In many ways it is our Constitution that decides who owns and governs Scotland. Now is a crucial time to read, research and imagine for that future.