By Mark McNaught
Otto von Bismarck is said to have famously opined that making laws is like making sausage; the longer you observe it, the less appealing the final product is.
Despite the lack of ‘beauty’ in the passage of laws, what is more disturbing from a democratic point of view its almost total opacity, to the point where all but the most hardened political junkies are aware of how bills fail and why they pass, assuming all this information is available.
When a bill fails, it is often impossible to know exactly why, so that citizens can see which politicians and/or parliamentary mechanisms are clogging the works, and hold them accountable. The secrets of the death of a bill often echo in the Parliament washrooms.
Parliaments over the centuries have erected byzantine and archaic internal rules to protect their power and avoid accountability. In the US Senate for example, individual Senators can put secret ‘holds’ on nominations or bills, thus unilaterally blocking action even if it enjoys broad support.
The ‘filibuster’ has been used with increasing frequency, thus enabling a minority of 40 Senators to block anything, even if a majority of the 100 Senators are in favour. These are rules of the Senate, of which the power to establish is granted by the Constitution. However, this does not mean that they are equitable or democratic.
I am much less familiar with UK Parliamentary procedure, yet it appears the system is even more opaque.
An episode that struck me recently was the failure of Lords Reform, which had been a part of the coalition agreement and seemed to enjoy cross-party support. All that I could glean from the papers was that a rump group of Tories didn’t want it, made their opposition patently obvious to Mr Cameron, and it was dropped. There was support from the Liberal Democrats, from much of Labour, and even many Conservatives.
Through debate and amendment, there could have been a law adopted which would have reformed this archaic undemocratic institution. However, there was little public debate, no vote, and no reform. If a bill that can garner broad support can’t pass, what can? You know the tune.
While not pretending Scottish politics under a written constitution would be devoid of cunning and intrigue, there could be some very effective provisions enacted which could ensure that bills get thoroughly debated, amended, and passed in total transparency.
- All parliamentary hearings and sessions must be televised live on an internet parliamentary channel, with national security exceptions.
- The author and provenance of all bills and amendments must be publicly disclosed during the debate, and the votes for and against them must be public. Like high-quality meat you buy at the butcher, all laws should be traceable.
- Bills as they are being written in Parliament will be projected on their screens for all to see, as well as on the internet parliamentary channel, with amendments and votes updated in real time.
- All laws would be required to be written in clear language for all to understand.
- Much like you can track the progress of a parcel when it is being shipped, citizens should be able to monitor the progress of a bill in the course of being adopted. If it is being blocked, it should be noted how, why, and by whom. Majority vote must ultimately prevail.
- Sufficient time must be given between the finishing of the drafting of the bill, and the final vote, so that Parliamentarians actually have time to read it and be fully aware of the contents.
- When it becomes clear that certain parliamentary procedures are anti-democratic and jam the works, there must be a neutral non-partisan means to tweak the system to improve its functioning.
These are but a few suggestions of the kinds of constitutional provisions which could greatly enhance democratic participation and parliamentary accountability. Research into other constitutions and systems the world over could yield many more.
Scots really do have a constitutional blank slate, able to create from the ground up a much more responsive, effective, and accountable political system than the UK currently offers. Scots must seize this opportunity, whatever be their political stripe.
Mark McNaught is an Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.