Scotland’s constitution: How to guarantee that citizen sovereignty equals political rights

August 5, 2014

In an article for the Constitutional Law Group, Katie Boyle has raised a number of important issues (1). Here we want to take up the question of how “We The People”, many of us, and from a broad spectrum of society, can become genuinely involved in making and finally deciding upon the new constitution of our state and country.

The prospect of making a new constitution of state is seen by some as important and perhaps exciting but by many as mystifying or remote. The experts and politicians (not all are expert) bear responsibility to inform the people about the process and to ensure that it can be readily understood.

How can real participation in the process of constitution building be enabled and promoted?

Boyle asks what shall be the role of direct democracy in making and (if necessary) revising our constitution. She wisely notes that, “a great deal of consideration would require to be given to creating a deliberative framework that engenders legitimacy in the eventual outcome of the Constitutional Convention process through mechanisms ensuring substantive inclusion and participation.” Further she writes, “The Scottish Parliament, and latterly the Convention itself, would also need to consider whether there should be some form of framework from which the constitution-making process should begin – through for example embedding fundamental constitutional rights ….”

In an essay about democracy and constitution-making, we asked, “A crucial question, … namely, how can we make ourselves a modern constitution when the “constitution” and related tradition which we appear to possess provide no suitable tools for the job? Given the essential and fundamental role played and to be played by electorates in making and changing modern constitution …., it appears most urgent that we should give ourselves the instruments of citizen-led democracy in order, as a people, to make, re-write and modernise our state constitution.” (2). These instruments, as fundamental constitutional rights, should be activated as soon as possible, so that they may be applied to forthcoming, vital constitutional and legislative tasks.

We endorse Boyle’s suggestions to create “a deliberative framework that engenders legitimacy” and that there should be “substantive inclusion and participation” of the people. Parliament, the Government and the Constitutional Convention, especially after a “Yes” vote, must respect and not “forget” that ultimate political power in the state is held by the people. The practical expression of citizens’ sovereignty is in “political rights” (compare the Swiss constitution, “politische Rechte”). These political rights must be practicable and applicable or sovereignty will remain no more than a slogan. In the draft constitution, our political rights are formulated as follows, “The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.” (3). This statement, which resembles the Universal Declaration of Human Rights (Article 21) (4) and the Swiss constitution (5), implies that governance shall be both direct (with ballots on public issues) and indirect (electing politicians as deputies or representatives). We call on Scotland’s Parliament and Government, as soon as possible, to make a public declaration which clarifies how these our direct and indirect political rights may in future be exercised. The people, not politicians must be in charge. In addition to the statement about referendums and elections (3) this new declaration, which deserves a status such as “CHARTER OF POLITICAL RIGHTS” should follow the Swiss (written) constitution by sealing and clearly defining our right to use the instruments of direct democracy, tools for citizen law-making such as the citizens’ initiative (proposition), the citizen-instigated legally binding referendum, the veto referendum, in short the rights to make and change any law including constitution. These tools of direct democracy do not replace, but enhance, parliament and government. This mirrors the constitution of Switzerland (5) which contains a guarantee similar to the international declaration mentioned above (4) and IN ADDITION spells out the methods of democracy which can be used without further acts or interference by politicians. These are fundamental rights which can be changed only by the PEOPLE themselves in a referendum. The Swiss section about citizens’ POLITICAL RIGHTS reads as follows:
Article 136 Political Rights
2 Citizens using direct democracy can both instigate and endorse (sign) citizens’ initiatives — law or policy proposals — and legally binding referendum ballots. Citizens can take part in elections of Members of Parliament.
Chapter: Initiative and Referendum
Article 138 Citizens’ Initiative for change to constitution
A hundred thousand citizens can instigate a binding referendum by endorsing an initiative-proposal within 18 months of its publication.
Article 141 Veto Referendum
Fifty thousand citizens (within a defined time period) can demand that a government law or proposal must be put before the whole electorate for decision in a ballot.

These principles and rights to have operable democracy, whether as part of a new charter or in other form, could well be later adopted by the Convention, with a strong view to their inclusion in the final constitutional draft.

References

1. Katie Boyle: Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill
Constitutional Law Group, June 21 2014 · 9:49 AM Seen 21 July 2014 http://ukconstitutionallaw.org/2014/06/21/katie-boyle-scotland-in-transition-the-scottish-governments-proposed-interim-constitution-and-the-scottish-independence-bill/

2. Citizen-led democracy is essential for sustainable constitutional reform http://www.iniref.org/latest.html

3. The Scottish Independence Bill: a consultation on an interim constitution for Scotland
The Scottish Government, Edinburgh 2014 ISBN: 978-1-78412-545-5
Extract concerning sovereignty and democracy
“PART 2
CONSTITUTION
Sovereignty
Sovereignty of the people
In Scotland, the people are sovereign.
The nature of the people’s sovereignty
(3) The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.”

4. The Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948 http://www.un.org/en/documents/udhr/

5. Swiss Constitution. Bundesverfassung der Schweizerischen Eidgenossenschaftvom 18. April 1999 (Stand am 9. Februar 2014) http://www.admin.ch/opc/de/classified-compilation/19995395/index.html

Campaign for direct democracy in Britain
Citizens’ Initiative and Referendum I&R ~ GB
http://www.iniref.org/ Link to site index

Experts call for double referendum

March 9, 2012

INIREF REPLY TO SCOTSMAN ARTICLE:

Scottish independence: ‘Only double referendum can decide UK’s future’
Alex Salmond: accused of changing position on referendum day by day. By SCOTT MACNAB  Published on Thursday 8 March 2012 00:31

INIREF REPLY (comment 111):

The idea that a ballot of the Scottish people should be held to decide on whether to accept a final negotiated treaty is not new. We put this forward a few weeks ago, recommending

“A first ballot to see if there is a majority for independence. If  Yes, then Referendum II to decide on the content of a treaty with the UK. Failing to carry out the second ballot would be like buying a pig in a poke. There are many potential tricks and traps. We the People should be made aware of the treaty’s content before we must commit ourselves. The decision is very serious, will affect the lives of many generations and so should be based on full knowledge.”

See the discussion from scot.politics and other Usenet groups via
http://groups.google.com/group/scot.politics/browse_thread/thread/cc95a27100bbac2b?hl=en#

Our “pig in a poke” comparison – see Scotsman article – seems to have caught on :-)

To be fair, we did not dream up the idea of a “treaty referendum”. Robert Hazell (constitution unit UCL) mooted this in 2002 and in 2007 the SNP conceded, “A second referendum would recognise the significance of the decision for Scotland to become independent and allow the people of Scotland the final say on the matter.” (Constitutional conversation)

The SNP’s (so far) rejection of a referendum about the completed treaty seems unwise. If the people were able to consider and decide upon matters of substance in this way there would be a better foundation for the future of Scotland and for its relationship with the (remaining) UK.

2012-02-27 Scottish independence referendum not fit for purpose

March 7, 2012

Two criticisms of the referendum proposal as it stands:

1. The referendum as proposed (February 2012) by the SNP led scottish government will be about the principle of independence or some weaker variant, putting a simple, “opener” question (or maybe two). It cannot address the substance of an independence treaty.

2. In order that the people of Scotland can decide democratically and legitimately, the FINAL NEGOTIATED TREATY or SETTLEMENT PROPOSAL must be put before the electorate and people in a legally binding referendum ballot, after the government and others have organised comprehensive public briefing, detailing  and explaining what is on offer.

I&R ~ GB Citizens’ Initiative and Referendum
Campaign for direct democracy in Britain
http://iniref.wordpress.com/

2012-02-24 Who should decide to hold a referendum of the people?

March 7, 2012

Who should decide to hold a referendum of the people?

Despots and governments have oft used the plebiscite (decision by the people or electorate, “referendum”) to manipulate politics and trick their rivals.

Who will decide how and when to hold a referendum about independence of Scotland? Will that be the Scottish National Party, one or a few of its leaders, the Scottish government or parliament, or perhaps our masters the UK government? Why should not the *electorate* decide when to have a referendum and also possess the right to put forward a clear, written proposition? According to the Universal Declaration of Human Rights “Everyone has the right to take part in the government of his country” both directly (on issues) or by electing MPs. See how this can work at http://www.iniref.org/steps.html

similar posted also to:

http://ourscotland.myfreeforum.org/sutra122819.php#122819

http://www.scotland.com/forums/scottish-politics/

————————————————–

INIREF Citizens’ Initiative and Referendum

Campaign for direct democracy in Britain

2011-4-25 Chances for direct democracy in Scotland: The parties

March 7, 2012

PostPosted: Mon Apr 25, 2011 6:24 pm    Post subject: Chances for direct democracy in Scotland: The parties Reply with quote


Chances for direct democracy in Scotland

The scottish political parties approaching a Holyrood election 2011
———————————————————————————

We present a sketch, a rapid survey, drawn from manifestos and other sources.

We appeal for factual corrections and comments.

Statement of our aims in this rapid survey.
As a campaign we of I&R ~ GB at iniref.org advocate the introduction of citizen-led direct democracy (CDD) at all levels of government. We regard a combination of direct democracy with existing forms of indirect, “representative” democracy to be the best known realistically achievable system of legislation and government. So we measure the promises and apparent intentions of political parties against this “gold” standard which, although probably not perfect, is “state of the art” governance.

An “authority-imposed” referendum or plebiscite is not regarded as belonging to citizen-led direct democracy. Provided that the result of the ballot is legally binding then this form of referendum may be classified as direct democracy. If the result is non-binding then the procedure should be considered to be a sort of consultation.

Scottish Conservative Party
No promise of citizen-led democracy CDD. The manifesto mentions that citizens of some Scottish cities may be allowed to vote in a referendum on the question of elected mayors.

Greens Scotland
Their manifesto does *not* explicitly promise to introduce CDD.
They write “Local community empowerment is an agenda” but do not explain how this will be organised. Further they write, “We’ll argue for a multi-option referendum with choices including the status quo, a stronger Scottish Parliament with powers defined through a participative process, and full independence based on a written constitution, and we will back this third option. We’ll also put the case for the decentralisation of power from Holyrood and local authorities.”

Scottish Liberal Democratic Party
No promise of citizen-led democracy CDD.

Scottish Labour
No promise of citizen-led democracy CDD. There is a commitment to consult the electorate more about local planning issues.

Scottish National Party
No promise of citizen-led democracy CDD in the manifesto.
They propose to hold an authority-imposed plebiscite: “We think the people of Scotland should decide our nation’s future in a democratic referendum and opinion polls suggest that most Scots agree. We will, therefore, bring forward our Referendum Bill in this next Parliament.”
Background:
A. In 2010 Unlock Democracy (formerly Charter88) surveyed political parties, asking,
“Direct Democracy – does the SNP have policy on increasing direct democracy – eg. Petitions committees, people’s bills, referendums”
REPLY FROM SNP: “The SNP would like to see direct democracy initiatives that would see the sharing of power with people, giving them real power and a direct say over the most important issues affecting their communities. This would include the triggering of referendums on any national or local issue once a requisite percentage of the electorate had signed a petition on the matter, as undertaken in the likes of Switzerland, the US and New Zealand. We also support a new Petitions Committee in the House of Commons, much like that of the Scottish Parliament, which encourages active involvement in the proceedings of Parliament.” Source Alexandra Runswick www.votefordemocracy.org.uk
B. At a recent SNP party conference a motion to introduce CDD by Alex Orr from Edinburgh received overwhelming support.

United Kingdom Independence Party
They promise to introduce citizen-led direct democracy CDD. To quote the manifesto, “UKIP alone trusts Scottish and British people to exercise a new right to demand a legislative referendum on any law, present or proposed. The result of any referendum will be binding on those we elect.”
————————————

Above posted to forum http://ourscotland.myfreeforum.org/about7846.html&highlight=iniref

————————————
I&R ~ GB Citizens’ Initiative and Referendum
Campaign for direct democracy in Britain
http://www.iniref.org/
http://www.iniref.org/latest.html

2012-01-26 Scotland: Quality of Independence

March 7, 2012

Opinion, not necessarily endorsed by iniref I&R ~ GB
——————————————————————

Considering the Quality of Independence for Scotland


You say you want your Indepe-e-e-endnce w-e-e-ll you know,
We all wanna change the world …
(After J. Lennon)

The referendum question or proposal – as far as the public knows in January 2012 — has not yet been finally decided.  Let us suppose that people resident in Scotland are asked to vote for or against Scotland becoming an independent country. Maybe after the years of Scottish National Party (SNP) campaigning the “yes” voters will win in 2014.

And then?

What will we have achieved?

As a Scot, in favour of peoples’ self-determination, of power devolved to regions, localities, above all to citizens, of strong democracy in the form of rule-by-the-people … (a) … I have my doubts about the proposed decision to separate Scotland from England and the rest of the UK.

I should mention here the fact that even “full” independence, of the sort to be expected with the SNP steering the country, would be incomplete. We might remain subjugate in finance politics, if we keep the UK pound and of course if we take the Euro. Worse, much worse, from the above perspective (a) of freedom from illegitimate power is that we will remain under the yoke of the English and UK monarchy. This holds not only symbolic power but can act using the secretive and opaque “royal prerogative”, while resembling a rather powerful though unelected and hereditary (in which century do we live?!!) presidency. We do not forget that in Australia, a country with vassal status similar to that proposed for Scotland in “independence” a few decades ago the UK monarch dismissed a prime minister and forced a change of democratically elected government. Other monarchic powers are so secret that we the people are not even allowed to know what they are!!

Scots, the English need us in order to struggle for their freedom and development. Their democracy is weak and resembles an “elective dictatorship”. Their (UK) parliament is largely supine, following the whip of the interest-controlled political parties. Even their indirect (“representative”) democracy is a laughing stock among experts and a bane for the electorate. The English need our help:

– to revitalise, revise and define their constitution of state, shaking off much dust of a thousand years;

– to introduce the principle that all political power belongs to the people, not to politicians and their rich supporters, not to corporations and banks, not to princes, kings nor emperors. This means “sovereignty” of the people and of nobody else;

– to pioneer citizen-led direct democracy in order to complement, steer, check and balance the sometimes erratic governance of parties and parliaments;

– to give our humanity, solidarity, energy and creativity for all these universal ideals;

– to cajole the UK into a crucible of constitutional reform and democratic development — this could most easily be done from the inside.

Having achieved the above we could stride down a path towards richer autonomy and national independence for all citizens, peoples, regions and countries.

Let us tak’ the High Road tae freedom!

Wallace-Macpherson

=================================
Published by
I&R ~ GB Citizens’ Initiative and Referendum
Campaign for direct democracy in Britain

http://www.iniref.org/

Discuss at our WordPress blog, on Facebook or in other fora.

2011-4 SNP policy on direct democracy and referenda

March 7, 2012
PostPosted: Wed Apr 27, 2011 11:11 am    Post subject: SNP policy on devolution of power to electorate Reply with quote

The Scottish National Party promises to let the electorate decide about national independence in a referendum vote.But what is the SNP’s policy concerning more “power to the people”?If elected to govern would they introduce stronger, citizen-led democracy such as the citizens’ law proposition, binding referendum and the right of the electorate to veto unwanted laws?Last year the SNP was asked about this in a formal survey.

Unlock Democracy (formerly Charter88) surveyed political parties, asking,

“Direct Democracy – does the SNP have policy on increasing direct democracy – eg. Petitions committees, people’s bills, referendums”

REPLY FROM SNP: “The SNP would like to see direct democracy initiatives that would see the sharing of power with people, giving them real power and a direct say over the most important issues affecting their communities. This would include the triggering of referendums on any national or local issue once a requisite percentage of the electorate had signed a petition on the matter, as undertaken in the likes of Switzerland, the US and New Zealand. We also support a new Petitions Committee in the House of Commons, much like that of the Scottish Parliament, which encourages active involvement in the proceedings of Parliament.” Source Alexandra Runswick www.votefordemocracy.org.uk

So, the SNP say that they support stronger, direct democracy-by-the-people.

But, in their 2011 manifesto we can find no mention of democracy reform.

Can anyone explain this?

Posted at: http://ourscotland.myfreeforum.org/about7854.html&highlight=iniref
——————————-
I&R ~ GB Citizens’ Initiative and Referendum
Campaign for direct democracy in Britain
http://www.iniref.org/

Scottish parties and dd
http://groups.yahoo.com/group/Democracy-Forum/message/378

Campaign Aims: Power to the People. Essential principles of governance outlined.

May 4, 2011

Iniref, the Campaign for Direct Democracy in Britain, has called for lobbying and campaign action for instance at general election times and to improve government law. Recently we drafted a call to lobby the Communities minister to improve his Localism Bill (see 1. below for blog and Facebook links).

For friends who are new to the Campaign we want here to summarise what our demands are and to define some basic principles of democracy by the people.

Power to the People when it comes from political parties sounds like a promise which they have no intention to keep if they win the election.

To put and fix “The People” in stronger control of the politicians and governments we propose that elements, or “tools” of citizen-led direct democracy should be formally introduced in the UK, in the countries and at local government level. So, an electorate could decide to intervene or innovate in any matter of public policy and would have the right to demand a veto of unwanted law or official action.

Our main Campaign demands are as follows:

Citizens’ Initiative
With the “initiative” a citizen or group has the right to put forward a proposal to introduce or change law. In order that a proposal will be put to the electorate (in a “referendum” or “ballot”) an agreed number of endorsements (“signatures”) must be collected and validated.

Legally binding referendum
If the required number of endorsements is obtained as above, there are two ways to proceed:
1. The proposal is put to the electorate in a referendum.
2. The proposal is first presented to parliament or local council, which must debate it. Parliament or council may adopt the proposal and pass it as law. Proposals which are rejected must be put to the electorate in a referendum. If a majority of the electorate votes for the proposal then it becomes law.

Power to the People: Principles of governance

The right to take part in running public affairs is a universal human right.

This right must be readily operable in politics and not subject to hindrances beyond reasonable regulation.

Democracy must include rule-by-the-people and may not be limited to indirect “representative” rule by politicians.

Some features of this rule-by-the-people include

The people can decide directly on public issues in addition to electing and removing politicians.

Formal proposals concerning public policy may come from the people and not only from an “authority” such as a parliament, government, civil service or a political party.

Proposals supported by a large number of the people must be put to the whole electorate for decision by ballot.

—————————————————–

Can we expect “them” to improve the way our democracy works? The political parties in 2011

Modest proposals for democracy reform involving citizen-participation were put forward by the Labour government but were never put to Parliament for enactment into law. A number of proposals in this field have come from the ruling Conservative/Liberal Democrat coalition. These proposals give the impression of a response to longstanding popular demand for better governance, greater accountability and more public participation. Under scrutiny the Con/Libdem proposals are seen to offer only half-measures: In local government affairs the people may make proposals and if the authorities agree the electorate may even be called to vote on a citizens’ proposal. However, according to the Coalition the Council will not be obliged to accept the electorate’s decision! At the level of state, only a right to petition Parliament is foreseen, with no citizens’ right to demand and obtain a plebiscite for a proposal with massive public support and no right to veto unwanted government legislation. See our critical overview of Con/Libdem proposals about democracy http://www.iniref.org/conlibdem.html  Further detail on request.

1. Letter to Communities ministry re. “state of the art” local democracy
Blog http://iniref.wordpress.com/letter-to-communities-ministry-re-state-of-the-art-local-democracy/
Facebook http://www.facebook.com/#!/event.php?eid=117619011650368

Sweden: Democracy reforms offer guidance for Britain

March 30, 2011

Democracy reforms in Sweden offer guidance for Britain

Stronger rights of electors to govern their own affairs now anchored in constitution

For the around 300 local authorities and 26 regions the Swedes introduced from the beginning of 2011
1. Citizens’ law-proposal (initiative)
2. Right (improved) to demand a plebiscite (decision by the electorate, “referendum”).

These changes strengthen the role of citizens in regional and local government. Before this reform there was a citizens’ right to demand a referendum but this could be refused by the governing authority.

Swedish attention to detail for good governance is illustrated by some accompanying innovations. They propose to build a “comprehensive direct-democratic infrastructure” (Kaufmann), with local advice centres for voters who wish to contribute to governance and exploit their new democratic rights. Also planned is a national institution for political participation, which will inform citizens and support and encourage the newly introduced “direct” democracy.

The rules for citizens’ initiative and referendum were laid down by revision of the constitution of state which came into force in January 2011.

————–
Summarised from: Bruno Kaufmann,  “A more democratic Sweden”: Demokratischeres Schweden md magazin Nr.88, 1/2011 published by mehr-demokratie.de

key words, tags: direct democracy, citizens initiative, ballot

Season for change in Britain? Citizen-led democracy

August 28, 2010
Season for change in Britain? Citizen-led democracy

by Michael Macpherson

About the author, see http://www.iniref.org/bios.html
—————————————————————–

Amazingly, the Tory party and Con-Libdems in coalition have opened up a debate about improving democracy-by-the-people, providing a range of opportunities for those who may wish to kindle public, professional and private reform-debate.

What are we talking about? For instance:

1) For the “local” level there is a proposal to introduce the citizens’ proposition (“initiative”) and referendum, which can be started by a minimum of one in twenty voters.

2) The coalition states, “We will give residents the power to veto excessive council tax increases.”

3) The new government has announced a referendum plan for village housing schemes with a ‘Community Right to Build’. Overwhelming support for a housing scheme must be shown in the referendum, with a hurdle of 80 or 90 percent approval.

Proposals “2” and “3” have already evoked heated comment by local authority representatives and interest groups, reported in news media, including BBC.

4) There is a clear commitment to “The Recall”, albeit in a watered down form. Coalition: “We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP is found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by l0% of his or her constituents.”

5) There is the promised referendum about electoral system with which the right of the electorate to decide constitutional matters is implicitly acknowledged. Coalition: “We will bring forward a Referendum Bill on electoral reform, which includes provision for the introduction of the Alternative Vote in the event of a positive result in the referendum, …”

6) Obligatory referendum promised on Europe (no such guarantee in sight for constitutional change at home): Coalition: “We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty – a ‘referendum lock’.”

7) Even at the national-level there’s a hint of direct democracy. Coalition: “We will ensure that any petition that secures 100,000 signatures will be eligible for formal debate in Parliament. The petition with the most signatures will enable members of the public to table a bill eligible to be voted on in Parliament.”

Separately all of these proposals are weak and mainly unsatisfactory for democrats. Together they show a small but seismic shift in reform potential.

This is a moment of great opportunity for supporters of citizen-led democracy. Campaigning must be stepped up in order to mobilise articulate opinion for improvements rather than token gesture changes in our democracy.

The Campaign needs more active people, across the countries. Contact INIREF via http://www.iniref.org/

—————————————————————–
DISCUSS THIS AT
Democr@cy Forum
Open Democracy
INIREF blog at WordPress


Follow

Get every new post delivered to your Inbox.

%d bloggers like this: