Towards a Dependable yet Adaptable Written Scottish Constitution


By Mark McNaught
In addition to enshrining rights and political values, a principle purpose of a written constitution is to establish fundamental rules of governance and parliamentary procedure.
If well designed, a constitution can provide for a fair, equitable process for adopting laws which allows the majority to function while respecting the rights of the minority.  If badly designed, and/or the constitution is weakly respected, majorities can run roughshod over the minority, or there can be gridlock and paralysis in a bitterly divided government.

Amending a constitution should rightly be difficult, especially when it concerns fundamental rights and democratic institutions.  However, there are occasions when constitutionally prescribed parliamentary procedure, or lack thereof, and the utter institutional incapacity to remedy the rules, can cause deep governmental dysfunction.

Two examples of this dysfunction in the US are the ‘filibuster’, a Senate manoeuvre in which 40 of 100 Senators can block any bill or confirmation, and ‘holds’ which allow Senators to anonymously block bills or appointments for no reason given.  These manoeuvres are obviously undemocratic, and are not found in the constitution.

However, the constitution does give the Senate the power to make its own rules, which can only be changed with a 2/3 majority, which could themselves be filibustered.  These mechanisms remain and are abused on an alarmingly frequent basis to thwart bills which enjoy majority support.  A minority frequently defies the will of the majority.  Paralysis ensues.

In the Westminster Parliament, we also observe dysfunction that could be overcome with a decent written constitution, if the UK ever sees fit to adopt one.  The recent failure of Lords reform serves as an instructive example.

According to press reports, there was support in all three parties, in addition to broad popular support for making the Lords a mostly elected body.  However, again if the press are to be believed, one small rump group of Tories was able to prevent the bill from even being seriously considered and debated by the Commons.

In retaliation, the Lib-Dems in the coalition, for whom Lords reform is a high priority, were no longer willing to support the constituency boundary changes desired by the Tories that would have purportedly helped them gain more seats in the next election.  Again, a minority is able to obstruct the potential will of a majority.  Politics can be better than that.

This is not to suggest that party politics should not play a fundamental role in the political system.  However, the playing field and rules must be judiciously constructed to assure optimal fairness, a democratic character, and the smoothest operation possible.  Mechanisms can be adopted which put democratic fairness above petty majority-obstructing manoeuvres, allowing the majority to prevail whatever be the mix of political parties supporting a bill.

One way to help achieve this is for constitutional parliamentary procedure to ‘tweakable’ when it clearly impedes these aims.

Under a written Scottish constitution, there could be articles which could be more easily amended than others, which would allow for fine-tuning of the constitution without undermining its fundamental democratic character.  The articles dealing with fundamental rights and democratic institutions could be very difficult to amend, say with a 3/4 majority vote in Parliament and ratification in a popular referendum. 

These would serve as the solid constitutional backbone of a democratic independent Scotland.  Articles dealing with parliamentary procedure which could be fine-tuned more easily.

An independent non-partisan commission could be established to propose procedural amendments if bugs appear in the parliamentary operating system, to be ratified by popular referendum.  Changes in parliamentary procedure could be made exclusively to improve the fairness and efficacy of the system, not to benefit one party over another.

Parliament would play no role in these types of amendment.  This could help keep political influence out of the political procedure, so that the system is always perceived as fair and equitable for all, thus bestowing legitimacy and gaining the trust of the citizens.

Obviously, these ideas would need to be much more thoroughly thought out, debated, and developed.  However, as I have emphasized in previous columns, independence really is an opportunity to start anew.  Scottish politics, if the system is well designed, could be more ballet than blood sport.  Why not? It is possible if Scots will it.

Mark McNaught is a member of the Constitutional Commission, and Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.