ANY constitution must be the carefully written, agreed rules of the game and not a permanent political football, writes George Kerevan
ALEX Salmond is absolutely correct to argue that an independent Scotland should have a written constitution. Actually, that would be a good idea for the United Kingdom as well, as it would stop Westminster politicians changing the political rules of the game to maximise party advantage.
However, the First Minister has gone further and suggested a number of things he wants included in a Scottish constitution, such as the banning of nuclear weapons from Scottish soil, free education to graduate level, and the right to a home. While it would be a brave politician who objected to a citizen’s “right” to a roof over their head, trying to entrench highly contested issues (such as free university education) runs the risk of making the constitution into a permanent political football instead of the agreed rules of the game.
Even the inclusion in a constitution of the seemingly innocuous “right” to work or to a home implicitly mandates the economic priorities of the elected government: any finance minister would be legally bound to set a budget to attempt to meet those requirements, even if it was economically daft to do so. Inevitably, economic policy would become the prerogative of the constitutional court.
None of this is to suggest Salmond’s proposals would not be popular. But it is to recognise that drafting a constitution – which presumably implies establishing a set of political rules that command a consensus and which are broadly deliberately difficult to modify – is not a task to undertake lightly, or off the cuff. In fact, I would prefer that an independent Scotland separately elected a one-off convention to write its constitution and put that document to a referendum.
Doing so would allow us to distinguish between the constitutional rules that define the operation of the political system and an associated bill of rights that entrenches the human rights of the individual. The UK and Scotland actually have a bill of rights in the European Convention on Human Rights (ECHR), drafted in 1950 under the leadership of the Scottish lawyer David Maxwell-Fyfe.
I’m aware there is other relevant legislation governing human rights, particularly the Bill of Rights in England and the Scottish Claim of Right Act, both from 1689. But the British establishment has always been careful to maintain the “sovereignty” (ie dictatorship) of Westminster, meaning these documents could be torn up at a moment’s notice. The ECHR, on the other hand, is entrenched, which is why Westminster politicians hate it.
Note, however, that the ECHR enshrines “negative” rights; in other words, it protects the individual from the tyranny of the state. It does not provide for “positive” rights; in other words guarantees of access to work, education or a home. A positive right means giving people something (like a job) rather than preventing the state from taking something away (like freedom of speech).
The problem is that giving citizens privileged constitutional access to a particular social good trespasses on the ability of the elected government to make sound economic choices based on the contingencies of the day. Not to mention the obvious fact that no government can ever guarantee to provide, say, a job for everyone regardless of circumstance. Positing such unenforceable “rights” risks devaluing the constitution itself.
Nevertheless, Salmond has a point. The modern “democratic” process has become a contest in which different interest groups fight to capture tax breaks, subsidies and privileged access to public spending. Those groups with better media savvy or larger publicity budgets are able to command power to the detriment of those who can’t work the system. Scottish Labour, for instance, is basing its comeback on offering to soak ordinary families in order to provide “targeted” spending for its clients.
So there is an argument for creating “positive” rights for every citizen, rather than allow those with a temporary majority in parliament to scoop the budget. Such rights would guarantee access to defined social goods; for example, basic state-funded health insurance, adequate pensions and even higher education. Libertarians will oppose such a move but their solution to the “capture” of the state budget by interest groups is even more drastic: they would impose severe limits on all public spending, taxes and borrowing.
But if Scotland does choose to go down the road of positive rights, we have to ensure any such provision is workable and enforceable. For instance, you can stipulate: “The state guarantees access to undergraduate university education for any citizen with the relevant academic qualifications, regardless of their economic means.” But you don’t have to say how you will do it in the constitution. As it happens, I’m opposed to university tuition fees but putting that in the constitution could be a hostage to fortune. Particularly as Scotland’s priority after independence is to grow the economy to create the wherewithal for a welfare state.
Where the First Minister gets it spot on is in trying to move the independence debate away from the relentless negativity of the No campaign towards a vision of what a new Scotland could be like. In fact, the constitution – or lack of it – lies at the heart of the argument for independence.
The UK lacks a codified, written constitution precisely because that makes it easier for the Westminster political class to manipulate the democratic process for its own ends. Only this week, following a heroic campaign by academic lawyer John Kirkhope, was the government forced to publish secret rules under which the Royal Assent is used to thwart the will of elected MPs. For example, in 1999, the Blair-Brown executive used the royal veto to sabotage Tam Dalyell’s popular private members bill that sought to transfer the power to authorise air strikes against Iraq from the Crown (in effect, Blair and Brown in the government of the day) to a vote in Parliament.
The UK has the most centralised, undemocratic political system in western Europe. That is why it should be dismantled. But we need to put in its place a Scottish constitution that commands universal respect – especially in the aftermath of a divisive referendum campaign.