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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

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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.

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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

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.

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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
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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/

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

Success for our Campaign: Government backs Citizens’ Initiative and Referendum

July 28, 2010

For over ten years our Campaign for Citizens’ Initiative and Referendum in Britain has worked to promote genuine direct democracy. So we welcome the inclusion of our major proposals in the coalition agreement of the new Conservative and Liberal-Democrat government.

In short:
The Government backs our proposals for Initiative, Citizens’ Referendum and Recall (sacking) of Members of Parliament!

Three items from the coalition paper:

We will give residents the power to instigate local referendums on any local issue.

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 10% of his or her constituents.

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.
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Campaign work must continue!

The realisation of these coalition proposals would bring considerable improvement to public participation in government. This reform could become a quiet revolution, a move from “steered” democracy to one with practicable, pro-active and veto rights for everyone, in a living, everyday democracy at local and national levels.

In order to ensure that these promises are fulfilled our Campaign will continue. There is a long way to go before legislators in parliament formally introduce genuine citizen-led democracy. Broad public demand for progress on this must become loudly audible. Our Campaign will:
— inform
— educate
— advocate
— lobby
— publish
— research

All of these activities depend on real people doing hard work with professional skill and original flair.

The Campaign for Citizens’ Initiative and Referendum in Britain needs helpers and support, see
http://www.iniref.org/crew.html volunteer
http://www.iniref.org/action.html support
http://www.iniref.org index
Independent of any political party
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Electoral system referendum announced

July 5, 2010

The Con/LibDem government has announced that a bill about the electoral system will be submitted to parliament proposing a referendum on May 5, 2011, on whether to keep “first-past-the-post” or switch to another system known as the Alternative Vote (AV).

Why must we be satisfied with the offer (see below*), made first by a desperate Labour party last year, of such a bad “reform” of the electoral system, “alternative vote”? New Zealand in the 1990s showed us a democratic way to go from first-past-the-post to a fairer and party-proportional system. In 1992 the people of New Zealand were asked (a) if they want a change then (b) which of four electoral systems they would prefer! The systems considered were: Mixed Member Proportional, Supplementary Member, Single Transferable Vote, or Preferential Voting. For descriptions of these consult the Electoral Reform Society or the London School of Economics Guide.

The Conservative/LibDem coalition’s plans are not chiselled in stone. With an effective campaign one or more alternatives to AV and FPTP could be pushed into the public debate and so widen eventual choice.

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* See some comments:
Cameron Clear as Mud on AV. WSJ Blogs Iain Martin On Politics July 5, 2010

Nick Clegg July 2010 “Surely when dissatisfaction with politics is so great, one of our first acts must be to give people their own say over something as fundamental as how they elect their MPs.”

Freedom, fairness, responsibility. And democracy?

June 15, 2010

I&R ~ GB comments on:

Conservative-LibDems agreement 2010. The Coalition: our programme for government. Freedom, fairness, responsibility. May be downloaded from direct.gov

How about the promised shift of “power to the people”? Unconvincing. The authors of this coalition plan offer policy and democracy “for the people” but shy away from introducing effective civil participation. More

In the table (see article) we comment on and assess the national (Westminster) petition, local democracy, the tax veto, the MP (sacking) recall, how we elect our MPs, constituency boundaries and number of constituencies, local councils and a possible referendum about the European Union.

Contents
– Coalition democracy table
– Further coalition plans related to democracy
– Press articles about The Coalition plans
– Footnote: David Cameron recorded in Autumn 2009 saying that he would introduce citizen-initiated referendum both at local and national levels.

FULL ARTICLE

Thanks for voting us in now Keep Quiet

May 16, 2010

Another  general election (2010), for we citizens the only chance to
influence — our own — public business, has come and gone.  Voters,
collectively, have again given “carte blanche” (unlimited power) to a
small bunch of politicians and their friends, to rule the “multi-trillion
concern” and human population of our countries for — probably — some
years. Then you may be allowed to vote again. In the period between you
will have no say in public affairs, even if events bring new challenges
and if politicians “forget” their promises and manifestos of ideals and
policies.

We citizens have NO SAY because we continue to accept a system of  INDIRECT democracy. This means that we elect people who behave like lord-aristocrats, with near-absolute power in the times between elections,  with power largely unchecked and policy unbalanced by sensitive feed-back and effective control.

THERE IS AN ALTERNATIVE TO THIS ELECTIVE DICTATORSHIP:

CITIZEN-LED democracy which gives us the following powers:

How it works.
1) A BRAKE on runaway government. With the optional veto-referendum a parliamentary bill or recently passed law can be referred to the people. Say, half a million endorsements (signatures) collected with a few
months can trigger a veto referendum.

2) INPUT BY THE OWNERS The citizens’ law proposal (initiative) allows  ideas which have gathered huge support to go onto the public agenda for debate. Parliament is obliged to debate these proposals. If rejected,  the proposal goes to binding referendum of the whole electorate.  Regulations for “the citizens’ initiative” are set to avoid overwhelming  the system with proposals. This sort of democracy generates much public  debate and encourages people to become involved.

3) SACK BAD MPs The “Recall” procedures is a citizens’ initiative within  a constituency. If an agreed large number of voters call for an MP to go, a ballot must be held to decide her/his fate. If the Recall succeeds  a by-election must be held. (As a reaction to public anger about the MP  expenses scandal the political parties now offer to introduce “recall”.  Beware that they may introduce only a watered-down and toothless  procedure!)

More detail about these “DEMOCRACY APPS” may be found in www, see

http://www.iniref.org/index.enter.html

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

Representation of the people or democracy circus?

April 26, 2010

Shading our eyes against the dazzle of the televised “elephant debates” (party leaders arguing live – in other countries these shows are no longer taken seriously), we may deduce the poverty of our democratic culture and discern the cynicism and brazened deceptiveness of the political class.

These tv spectaculars are part of a periodic circus designed to convince us that by voting for “our” party you will be represented on most if not all major public issues of government. Such representation over the four or five year life of a parliament is as impossible as it is fraudulent.

Simply by improving the electoral system by which we select candidates and parties – whether with alternative vote, single transferable vote or another, cannot more than marginally correct our deep and dangerous democratic deficit! That is, all this talk of “PR”, proportional representation and related, would alter only INDIRECT democracy.

Both with PR etc. and with the current electoral system (“first past the post”) you may vote for candidates and political parties ONCE EVERY FIVE YEARS after which you have NO SAY AT ALL in public policy or in managing (your own) public affairs.

We say, THE ELECTORATE should (a) be enabled to veto unwanted government policy and (b) obtain the right to put forward proposals public and parliamentary debate. If necessary a large,  agreed number of voters should be able to bring a proposal to referendum of the whole electorate, even if the government of the day does not want a referendum.

How to enact these straightforward but vital reforms? See:
http://www.iniref.org/steps.html Basic presentation
http://www.iniref.org/case.html The case for more democracy
http://www.iniref.org/carta.htm Election campaign call
http://www.iniref.org/index.enter.html Web site index

Democracy deficit cannot be cured by electoral reform!

April 21, 2010

Let’s be clear, changing the electoral system, just the method we use to vote for candidates, will do little to give “we the people” more influence over politicians and public affairs. For that we need more “direct” democracy (see www.iniref.org) such as the law-proposal and the veto referendum.

People in recent decades have become more sceptical about politicians of all parties. Many have learnt that by just giving away your vote once every five or so years you have very little influence. At election time you have to choose a “package deal” of party policy, hoping for the best, and you have no chance to select and vote on particular public issues, however important some of them may be.

For our “democracy deficit” a remedy offered, at least by LibDems and Labour, is to replace our “first past the post” electoral system with a supposedly better one. The Conservative Party wants no change. The LibDems want proportional representation of parties whereas Labour offers “alternative vote”.

These changes would in no way give more “power to the people” in the long period between general elections.


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