Alex Salmond And The Written Constitution

Murdo Ritchie, a new member of the RCN, writes about the political significance of the issue of a written constitution raised the SNP government’s White Paper.

Although the First Minister has abandoned the SNP’s commitments to referenda on a future independent Scotland’s membership of NATO and the European Union as well as continuing the current monarch as head-of-state, he has remained quite firm on the importance of a written constitution for a future Scotland. Indeed he has emphasised this policy more strenuously than many others. It may be the single most important policy proposal he has made. It is central to a full and proper understanding of the importance of the White Paper^[1]Scotland’s Future. Your Guide to an Independent Scotland. The Scottish Government 2013.2.11.

At the 2013 Radical Independence Conference, northern Irish politician Bernadette Devlin-McAliskey reminded the audience of the rebuttal of Edmund Burke that Thomas Paine delivered against inherited power and monarchy. Most of that response pointed out the necessity of making sure that monarchy was replaced by a written constitution that placed sovereignty into the hands of the people or the nation, as well as clearly separating the constitution from the government.

The absence of a written constitution in Britain was the result of the historic compromise between the declining power of the monarchy and aristocracy and the growing strength of the bourgeoisie that established the location of sovereignty by the doctrine of the Crown-in-Parliament in 1689. It was a convenient arrangement that helped the aristocracy become richer by the use of industrial processes, especially in mining. It helped the bourgeoisie grow in political influence and melt the two classes into each other my marriage. It also short circuited any developments that led to any variant of popular sovereignty or inalienable rights that cannot be touched by governments.

Constitutional analysts describe the United Kingdom as “a constitutional monarchy … in which a hereditary head of state reigns but does not rule”^[2]The Guardian has got it wrong. A.V. Dicey claimed the pillars of the British “constitution” are Parliamentary sovereignty and the rule of law. The law courts become especially important because it is almost impossible to know what is correct and incorrect in politics and administration because “custom and practice” require quasi-theological interpretations in the absence of clearly written constitutional and national purpose.

For Paine, this was an absurd and dishonest compromise. “A constitution is not a thing in name only, but a fact. It has not an ideal but real existence, and wherever it cannot be produced, there is none. A constitution is a thing antecedent to government and a government is only a creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government”^[3]p. 93, The Rights of Man, Thomas Paine, Pelican Classics, 1969.. He further added a government “cannot have the right of altering [the constitution] itself”^[4]p. 95, ibid..

THE CROWN-IN-PARLIAMENT

The “Glorious Revolution” of William and Mary helped establish the early institutions of capitalism such as the Stock Exchange, the mercantile trading companies such as the East India Company, privatisation of state lands while conferring no bourgeois democratic rights on any class. To this day, subjects of the United Kingdom possess no “rights” other than those obtained by “custom and practice,” even those obtained through the law courts, that cannot be removed by a “sovereign” Parliament. Moreover, Crown Powers exercised through numerous opaque institutions such as the Privy Council or Crown Prerogative give Cabinet ministers powers that are beyond any real scrutiny or accountability.

A “sovereign” Parliament can tolerate no challenge to its privileges from popular protests and demands or institution such as regional assemblies, local government or rights originating in a popularly achieved written constitution. This is why one does not and cannot exist. The Scottish Government’s insistence on this policy can only lead to further confrontations with Westminster, even if neither party wish them.

Britain’s unfinished bourgeois revolution not only has an effect on the workings of government, the law courts and the institutions conventionally associated with government but also on the wider culture and behaviour of all classes across the country. As Engels wryly commented to Marx, “the English proletariat is actually becoming more and more bourgeois, so that the ultimate aim of this most bourgeois of all nations would appear to be the possession, alongside the bourgeoisie, of a bourgeois aristocracy and a bourgeois proletariat”^[5]no longer available. This is hardly surprising when bourgeois rule to achieve bourgeois goals was being carried out by feudal mechanisms specially created in the forge of capitalism. Political parties that accepted the sovereignty of the Crown-in-Parliament placed very severe limits on the policies they could develop.

CUSTOM AND PRACTICE INSTEAD OF RIGHTS

Not only was a written constitution out of the question, but local government could never develop without reference to Westminster, no unchallengeable legal rights of free speech, assembly, could ever be won without arbitrary reversal. Public services may exist but no-one has a “right” to their use, making them discretionary and dependent on a “custom and practice” that can easily be withdrawn when too costly or inconvenient for the middle classes. Consequently class struggles became battles over economic issues not about who rules society or about the essential institutional mechanisms to improve working class life. This has produced a “left” that is constantly blind-sided by constitutional demands allowing them to fall into the hands of bourgeois parties such as the Liberal-Democrats and the nationalists.

THE MYTH OF THE BRITISH CONSTITUTION

Constant references to the “British Constitution” have assisted many to believe there is one. A lot of misleading nonsense has been produced over many centuries about this imaginary creature. Institutional writers have praised this entity’s beauty as much as its efficiency. In every case, they are really praising the class rule that has kept class conflicts away from their doors. It is far from surprising that Edmund Burke, Dr. Samuel Johnson, Walter Bagehot and even Erskine May are writers claimed by self-identifying conservatives and liberals. All these writers may have tried to identify the mystic essence of their imaginary constitution, but none dared to capture it and bring it into reality. They all knew that to making it tangible would create severe a challenge for class rule and its crown powers that dare not write their purpose. Simply saying that it was not there would force the question, what is the real power behind the government? Daring to write a constitution for a future independent Scotland transgresses the lèse-majesté of hundreds of years

A constitutional monarchy is a contradiction. A monarchy can only rule through familial connections with only limited codified rules affecting its operations. Consequently, the UK’s so-called Bill of Rights is only a document outlining dynastic succession, but it best known for its prohibitions placed on a monarch or immediate successors marrying Roman Catholics. A constitution requires mass assent and mass assertiveness. It is the levels of class consciousness within those classes that shape that mass assertiveness; declaring whether they are a class-in-themselves or a class-for-themselves. It makes it a battleground for contesting classes. A constitution often becomes the clearest barometer of class power in a country. Its absence helps conceal class power; its presence registers absolute and relative class strengths.

Alex Salmond has often under-stated the difficulties that still exist for many for British colonies with written constitutions. “[I]n the entire Commonwealth … we are the only nation without a written constitution or constitution Act”^[6]Alex Salmond in favour of written constitution if Scotland was to become independent. This ignores the difficulties encountered by even the stronger, more bourgeois members over issues of their constitutional relationship with the United Kingdom. The presence of the Governor-General in Australia, technically the monarch’s representative in the country, was a key component in the overthrow of the democratically elected Labour government of Gough Whitlam, and Canada still locates the UK monarchy as the foundation of the executive (Queen-in-Council), legislative (Queen-in-Parliament) and judicial (Queen-on-the Bench) branches of its government. The opaque Crown Power of Royal Prerogative still exists in Canada. This style of government severely marginalises most republican sentiments.

THE LOCUS OF SOVEREIGNTY

Thomas Paine perfectly highlighted the challenge that a genuine written constitution can neither exist with a monarch or be integrated into the direct operation of government. “A constitution is the property of a nation and not of those who exercise government”^[7]p. 213, Paine, op cit... Because the British “constitution” is located within government and is not “owned” by either the nation or the people, it fails the test of being called a constitution. By its very existence a separate written constitution in one part of the United Kingdom becomes a challenge to the Crown-in-Parliament.

The historic shift of sovereignty from an Absolute monarch to the Crown-in-Parliament may have been a “democratic” gain in 1689, but was rapidly overtaken by the seizure of sovereignty in the “people” in the formers colonies of the United States of America and in the ”nation” in revolutionary France. In this way, the UK is described as having an “unfinished” or “uncompleted” bourgeois revolution.

A nation cannot have two sovereigns, so when the White Paper asserts that a future Scottish Parliament and institutions “will be based on the sovereignty of the Scottish people, rather than the sovereignty of Westminster”^[8]p. 354, Scotland’s Future, op cit.., it lights up a road that can only travel to the establishment or republican government as in Ireland. However to commence travelling on that road, it is essential to heighten the levels of class consciousness and assertiveness. To do that a heightened political consciousness around issues of the purpose of the state and government must be created from the necessary constitutional battles that will inevitably arise. As Paine put it, “In forming a constitution, it is first necessary to consider what are the ends for which government is necessary?”^[9]p. 220, Paine, op cit.. Because the creation of a new constitution is antecedent to that of government, this is not just another election manifesto. It creates a process of heightened political debate discussion and definition of purpose.

ECONOMICS OR POLITICS?

On the occasions the opponents of this Scottish national independence process have presented any case, it concentrates on economic concerns. This has taken a number of shapes. The most common being that by staying in the political union, greater economic competitiveness, and lower tax rates will produce greater economic well-being. A “left-wing” British unionist, variant exists from the Red Papers Collective that emphasises the supposed absence of more public sector spending. All acknowledge the need for some increased administrative reforms within Scotland. But they are all characterised by the use of supposed economic reasoning to measure political and constitutional challenges. Instead of judging the scale of the proposed reforms by how much increased control and empowerment that becomes available to citizens, especially by heightened consciousness, they use the scale of how much they believe their incomes will be disrupted by the changes or the absence of commitments to increased public spending.

These changes are not socialist changes, but bring into existence mechanisms of government that give rights to individuals and institutions that do not and cannot exist under the Westminster system of government. To place in a written constitution the entitlement of citizens to public services removes many from the arbitrariness of discretionary public service cuts. It also firms up the rights of those services to exist and government’s obligation to properly fund them. A failure to maintain constitutional rights by a government can stimulate a legal challenge that alleges a breach of constitutional rights. This does not and cannot exist under the present constitutional arrangement, nor can it be cobbled onto it in the future.

The UK’s uncompleted bourgeois revolution has left substantial areas of reform that need to be tackled. Either this is done as part of a far-reaching reform programme that is in the interest of working class people, or it is done by reactionaries who will leave it still uncompleted but entrenching features that strengthen their class power. By posing this question, the parties that have built their existence by ignoring these issues will be increasingly shown to have no strategies for these necessary reforms. For the first time in history a “mainstream” political party has submitted a prospectus that engages with these long avoided issues.

A written constitution dramatically alters the political landscape. Politics cease to be either a continuation of more or less of the same. An entirely new set of rights are created, that can be identified, developed and challenged. Politics will always triumph over economics. Used correctly, these newly acquired rights can shape the correct institutional structure and open up new avenues to challenge abusive practices and unleash powerful creative energies that are currently frustrated and obstructed.

Writing a new constitution will require a Scottish National Constitutional Convention. There has never been such a conference on mainland Britain. It will require a massive dialogue across the nation as concerns, issues and perspectives are raised. A heightening of class, national and political consciousness will occur through this kind of process. It will not be one that can be easily controlled. Alex Salmond, the Scottish Government and the SNP may find many of their cherished compromises over the continuation of the monarchy, membership of NATO and the EU seriously challenged or even defeated. A written constitution opens an entirely new arena of challenge to the powerful.

THE CHALLENGE OF THE WHITE PAPER

In the White Paper, Salmond puts forward several suggestions for consideration by a future Scottish Constitutional Convention^[10]p. 353, Scotland’s Future, op cit... These are:-

• Equality of opportunity and entitlement to live free of discrimination and prejudice;
• Entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and members of wider society;
• Protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitments to sustainable development and tackling climate change;
• A ban on nuclear weapons being based in in Scotland;
• Controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use;
• The existence and status of local government;
• Rights in relation to healthcare, welfare and pensions;
• Children’s rights;
• Rights concerning other social and economic matters such as the right to education and a Youth Guarantee on employment, education or training.

These are only suggested items for consideration at a later date with no certainty they will be accepted, but they are designed for inclusion as inalienable rights within a written constitution and not statements that can be ignored within election manifestos. Put simply, a citizen may be able to sue the government if constitutional provisions are not fully met.

Intentionally or unintentionally, the establishment of a written constitution will drastically change the way politics is carried out. Alongside the more “mundane” political practices of seeking to win majorities in assemblies for political goals, all participants will have to meet the values contained in the constitution. If they disagree, they will have to effect a constitutional change, which is usually over a higher hurdle than any change of government. This important aspect is not lost on reactionaries who have often sought constitutional amendments seeking bans on abortion or limits on tax raising powers. This requires a higher level of political consciousness, so that these types of modification can occur. Preparing and maintaining the political ground not just to defeat these types of encroachments is necessary but it becomes necessary to have policies that make it easier to struggle for socialist advance.

CONSTITUTION AND CONSCIOUSNESS

The presence of a written constitution over the status quo is enormous. At present pinning any responsibilities on government or public institutions is almost impossible. Rights and responsibilities are defined; it ceases to be guesswork depending in the mood of a judge and jury arising out of a court case.

At this point socialists should be drafting the constitution for an future independent socialist Scotland. The Articles necessary for discussion at any future Scottish Constitutional Convention must include:

• The ability to bring about Amendments to the constitution triggered by a petition of 100,000 signatures followed by a popular vote; to succeed it would require a two-thirds majority;
• The ability to submit or withdraw legislation by popular referenda again triggered by a petition of 100,000 signatures followed by a popular vote; to succeed it would require a majority;
• A clear declaration of Scotland’s status as a republic, with a commitment to republican values especially the removal of feudal titles of address; it is assumed that all executive reserve powers would be clearly defined in the constitution;
• A clear statement that the republic is a secular one. While constitutional freedoms should be guaranteed on freedom of religious worship, it is not permitted that the advancement of any religious opinion by the state, public organisations or by public funding should occur. There must be no established church.
• Amongst the “[r]ights in relation to healthcare, welfare and pensions” must be the right to an affordable home or decent quality and standard. To achieve a Scotland that abolishes homelessness would be a truly global achievement;
• A ban on joining any “exclusive” military alliance in addition to the White Paper’s suggested proposal. An independent Scotland should not participate in any military alliance that excludes any other European nation;
• A clear statement committing the nation to work for sexual/gender equality that allows full rights of sexual expression, information as well as an obligation to provide fully comprehensive sex education, contraception and, when requested, termination of pregnancies.

Scotland’s history of religious or religious inspired authoritarianism makes many of these safeguards essential. It is entirely wrong to imagine that an age of tolerance currently exists or that such pressures cannot creep back. These are not socialist demands for a workers republic. If they were then the immediate public ownership of the banking and energy sectors would have been included. Instead they are the “immediate” demands that are necessary for the consideration of any future Scottish Constitutional Convention.

REPUBLICAN VALUES IN SOCIALIST STRUGGLE

Often the demand of reforming liberals, a written constitution is impossible without the removal from Scotland or Britain of the monarchy and its political apparatus. A task they refused to perform. This uncompleted reform process corrupted the culture of the left making it fail to recognise the enormous importance of republican values to socialist fights as well as the necessity of making its gains “permanent” by the use of a written constitution. None of the features emerge spontaneously from the class struggles of the bourgeoisie and the proletariat; class struggle without the clear aim of a workers’ republic will quickly degenerate into crude “economism.“ The nationalist idea of an independent Scotland with a written constitution accepting the monarchy as head of state ignores the enormous tensions between the two and how it will place limits on future progress.

A written constitution can only be a codification of consciousness, it requires struggles to achieve and raise that consciousness. But lines of victory have to be written down somewhere especially in written constitution.

This article was first posted at:- http://murdoritchie.blog.co.uk/2014/01/28/alex-salmond-and-the-written-constitution-17646534/

Footnotes