The Liberating Scot

This was first published in January 2025 as pre-event briefing for the Indpendence Forum Scotland’s Spring Convention on Scotland’s Future held on 1st march at the Greyfriars Charteris Centre, Edinburgh.

1. Introduction

This short discussion paper on Scotland’s Democratic Future forms part of the pre-event briefing for participants at the first of a series of convention meetings on Scotland’s Future. The discussion session on governance aims to establish views on –

Scotland’s current situation & what needs to improve,

What vision of democracy do we aspire to & what are the impediments,

How do we move to a shared vision from where we are & what are the priorities?

Given the limited time available on the day for discussion, the focus of this paper is on three main topics. Other aspects of democracy are mentioned, and participants may have other governance & democracy issues they wish to raise for further research and then bring back for discussion at future meetings.

2. Background – Scotland’s Constitutional position

(i) Any discussion on governance and democracy should start with an understanding of the constitutional context. Scotland as a nation has a long history dating back to 892AD. The sovereignty of the Scottish People was affirmed by the Declaration of Arbroath in 1320 and again in the Claim of Right in 1689. These hold that the people of Scotland are sovereign and have the right to determine the best form of government for their needs. This is in stark contrast to the UK, which operates with Parliamentary Sovereignty where parliament is sovereign over the people. However, Scotland’s right to self-determination has been reaffirmed on numerous occasions, including as recently as 4th July 2018, when the UK House of Commons officially endorsed its principles. Even as recently as September 2022 ‘King’ Charles III acknowledged the current validity of the Claim of Right when he succeeded as Monarch. Although noticeably he did not take the Scots coronation oath.

(ii) Political rights are enshrined internationally in the Universal Declaration of Human Rights 1948 (UDHR), whilst both political rights and the right to self-determination are covered in the International Covenant on Civil & Political Rights (ICCPR), a multilateral treaty, which the UK signed up to in 1976, and which implemented UDHR.

The UDHR specifically provides that

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”

and the ICCPR reworded this by stating

“Every citizen shall have the right and the opportunity… …to take part in the conduct of public affairs, directly or through freely chosen representatives.”

With respect to self-determination, ICCPR states:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

(iii) The proposed Spring Convention discussion on Scotland’s Democratic Future takes place before and in preparation for any move towards a Scottish Constitutional Convention, where Scotland’s longstanding constitutional principles would be collected in a single draft document with modern articles to allow for the possibility of future amendment. After consideration by the Scottish Constitutional Convention a modern draft constitution would be put to the people as the basis for moving forward politically on the route to regaining Scotland’s position as an independent sovereign state.

3. What kind of Democracy & Government structures do we have and what key aspects need to change?

(i) The UK is generally categorised as a Parliamentary Democracy, and in terms of the Global State of Democracy (GSoD) framework ⁽¹⁾ of the International Institute for Democracy and Electoral Assistance it performs in the top 25 per cent globally in almost all factors, except for Electoral Participation, Personal Integrity and Security, Elected Government and Inclusive Suffrage. However, the UK has no encoded written constitution. Westminster has 650 MPs, of which 57 represent constituencies in Scotland.

(ii) In Scotland the Holyrood Parliament, operating as a devolved arm of the UK parliament, democratically elects a body comprising 73 MSPs representing individual geographical constituencies using ‘first past the post’ and 56 MSPs under a regionalised form of additional member system, all elected for five-year terms.

Q In the context of Scottish Sovereignty, to what extent does the devolved parliament in Holyrood, operating with limited powers under the Scotland Act 1998, deliver the type of democracy we want?

(iii) Unlike Westminster, the Holyrood parliament does not have a second chamber but a committee system, which was designed to introduce as well as scrutinize legislation. It is recognised it is unable to fulfil either role effectively, with size being an issue given the limited number of MSPs available to populate the committees. Suggested solutions have included⁽²⁾ electing ‘senators’ for each region of the Scottish Parliament, or a ‘citizens’ assembly’, where members of the population are invited to serve for a limited period – as we do with juries.

Q How might a democratically elected second chamber provide more checks and balances on government and the legislative process and provide a layer of protection for Scotland’s constitutional principles?

(iv) It is commonly stated that Scotland has the least local level of local democracy in Europe, and proposals have been made over the years to address this: by creating a new tier of local democracy at the community level ⁽³⁾, or more recently calling for devolution to be extended to local government by “Building a Local Scotland”.⁽⁴⁾We have some elected councils equivalent in size to European Regional Governments, but with no autonomy and no decentralisation of democratic power. We have a Convention of Scottish Local Authorities signed up to a Scottish Government Partnership Agreement (the Verity House Agreement, 2023), which does not create any legal obligations in setting out a so-called collaborative approach to delivering shared priorities with central government in Holyrood.

Q How can we improve democracy in Scotland’s Local Government?

(v) The UK, and Scotland with its devolved settlement, are held to be operating representative democracy, where voters elect representatives to ensure that people’s interests are respected. Yet we see that both Holyrood and Westminster governments seem to be increasingly influenced & controlled by lobbyists, multi-national corporations, & global corporate oligarchies, rather than by the electorate.

Corporate sovereignty prioritises deregulation and exclusivity, with individuals aligned to corporate entities allowed powers to circumvent government with the primary objective of profit-making. This is apparent in the setting up of Green Freeports and Special Enterprise Zones in Scotland.⁽⁵⁾

Q What checks and balances are there to safeguard the integrity of the political process and prevent the corporate capture of democratic government in Scotland?

Q How might we effectively outlaw professional lobbying, whilst allowing civic interest groups to put their points across?

4. What vision of democracy do we aspire to have, and what are the impediments?

(i) Direct Democracy (DD)

Direct Democracy comprises the instruments and processes which most clearly align with Popular Sovereignty, the fundamental principle underlying Scotland’s Constitution (internationally referred to as Political Rights)^{(6 )}. This alternative to the top-down and confrontational Westminster and Holyrood governance systems would enable Scotland to create a model based on popular consensus and mutual respect. The framework is inclusive: People, Local and Regional Councils, Parliament and Government, all working in the national interest – the “Common Good”.

As outlined earlier in this paper, the ICCPR provides every citizen with the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives. In 1996, recognising the difficulties of transposing ICCPR into domestic legislation, the UN Human Rights Committee approved an Addendum to Article 25, within which paragraph 6 forms the authoritative basis for Direct Democracy (DD) in Scotland⁽⁷⁾.

The interpretation of ICCPR has never been addressed by government in the UK or Scotland, although Schedule 5 of the Scotland Act 1998 allows Holyrood to implement Article 25 with respect to devolved legislation. By failing to implement ICCPR, both governments are thus retaining the existing democratically deficient governance structure, and are guilty of denying citizens their political rights with which to hold government to account.

There are several variations of Direct Democracy (DD) and Decentralised Direct Democracy (DDD) functioning successfully across the world. Switzerland is by far the recognised leader. The following are key features of the Swiss system with potential context for Scotland:

The People control the Constitution (DD) – 2% of voters (80,000 in Scotland) may propose a totally new Constitution (signatures to be obtained within 18 months from the launching of such an Initiative); a majority popular vote is required to approve the proposal.

The People & Regions jointly control changes to the Constitution (Decentralised DD); a double majority of People & Regions is required to approve the proposal.

Parliament & Government draft laws and decrees to implement approved Constitutional changes and other normal business of government.

The People & Regions control Parliament and Government (DD / DDD) – 1% of voters (40,000) or a specified number of Regions may launch a referendum contesting virtually all proposed legislation or certain government decrees within 100 days from official publication of the approved Bill. A majority popular vote is required to approve or reject proposals.

Conclusion: No perfect national governance model exists. But if one believes the People should exercise ultimate control over their government, as with Scotland’s Popular Sovereignty, then Direct Democracy is the system that could give Scotland that ability. Direct Democracy inverts the power pyramid and puts the People back where they belong – on top.

Q1(a) How might the People & Regions of Scotland control changes to the Constitution?

Q1(b) How might the People & Regions of Scotland be able to contest approved legislation before enactment?

Q2 What size of budget should DD actions (e.g. Initiatives and Referendums) receive in the context of the total cost of Parliamentary Sovereignty?

(ii) Decentralisation

The Scottish Government has stated it wants to “devolve more power to more local levels” and has an ongoing “Local Governance Review – Democracy Matters”. The findings from the second phase of their Democracy Matters conversations were published on 19^th September 2024 alongside a joint statement with COSLA setting out their next steps. A cross-sector Democracy Matters steering group has been set up, and the Scottish Government is working towards a robust policy development and testing phase and an implementation phase of decision-making systems and processes early in the next parliament, including consideration of the need for any essential legislation.⁽⁸⁾

This timescale clearly implies there are no Scottish Government plans to legislate for the decentralisation of democratic power in any significant way soon.

In these circumstances it seems likely that the outcome of the Local Governance Review will omit borrowing or meaningful taxation powers for Local Authorities, two financial fundamentals of Decentralised Direct Democracy (DDD). Because the outcome of the review will probably perpetuate local government funding from Holyrood, there will still be constraint on local initiatives.

The DDD governance principle of Subsidiarity will almost certainly be ignored. The principle of Subsidiarity – one of Switzerland’s constitutional red lines – states:

“Nothing that can be done at a lower political level should be done at a higher level.”

If, for example, in Scotland under DD a community council is unable to deal with a certain task, the next higher political entity, i.e. the Region, would have a duty to provide support. If power isn’t devolved constitutionally to the regions and communities, there is no Decentralised Direct Democracy.

The following demonstrates the importance and potential of DDD:

In the Swiss DDD model Regions are Sovereign because they hold what is termed “Residual Power”: Central Government fulfils the tasks assigned to it by the Constitution (which is controlled by the People & Regions) and nothing more;the Regions are responsible for everything else. Because of this Sovereignty, the Regions, including local communities, control more than 50% of national tax revenues. The Regions are responsible for assessing taxable income and wealth, including land and property, and taxes are levied at all three governance levels – Municipal, Regional and National – with regional taxes taking the lion’s share. Responsibilities at each level are clearly defined and tax rates are subject to DD supervision.

The above decentralisation model can be presented as follows:

People+Regions > Government+Parliament

In Scotland the governance centre of gravity is pro-people, against private ownership of public facilities, and against private corporate interests prevailing over those of the electorate. This is why, thanks to the actions of Strathclyde and its population in 1994, who in a referendum rejected the privatisation of Scottish Water, Scotland still has clean drinking water – a positive outcome that illustrates the potential of decentralisation in Scotland. However, their referendum was a one-time event, initiated and organised by the Region. (Subsequently, Westminster dissolved Strathclyde Regional Council.)

DDD, which recognises Political Rights such as Initiatives & Referendums at each of the three levels of governance, puts the People back on top – which is where they belong under Popular Sovereignty.

Conclusion: Decentralisation is already recognised in Scotland as a governance “Must” which, if properly implemented, would act as a national motivator. To achieve this, the national governance “centre of gravity” must be shifted.

Q How could the national governance “centre of gravity” be shifted to achieve decentralisation in Scotland?

(iii) A Second Chamber (Perhaps A Modern Convention of the Estates)

In the years since devolution there have been occasional discussions and proposals around the need for a second chamber. Most recently the Scottish Government, in its paper ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’, proposed that a permanent constitution for Scotland could include provisions on, amongst other things, “a new type of Scottish Parliament, including considering the creation of a second chamber”.⁽⁹⁾ The purpose and function of any proposed second chamber needs to be clearly defined and agreed in line with Scotland’s constitution and the principle of the sovereignty of the people. This precludes the possibility of a revising chamber based on the Westminster model of the House of Lords.

There is a view⁽¹⁰⁾ that a second chamber could be established through the ‘recall’ of the constitutionally guaranteed second parliament of Scotland, formerly known as the ‘Convention of Estates’; a legislatively competent and democratically elected body empowered to defend, protect and uphold the sovereign rights, assets, interests, and liberties of the people against infraction or removal by governments, courts or other bodies. These powers designed to uphold the rights of the electorate could be achieved through consultation, recall or impeachment of elected representatives, veto of invasive and unconstitutional legislation, initiation and oversight of national referenda, and ensuring adequate mechanisms of popular sovereignty, such as democratic initiatives, full and free access to information, accuracy in reporting, and national tribunals, hearings and consultations.

This body could also exercise its historic, exceptional executive competence in the absence of a legitimate Scottish Parliament, for example as the instrument for conducting democratic elections to an independent Parliament, or acting temporarily instead of Parliament while a new coalition government is being formed.

Conclusion: In the context of sovereignty of the people and DDD, a second chamber should not be a mere revising chamber for the legislative process, but should have oversight on ensuring that the principles of the constitution are always upheld.

Q Do we need a second chamber, and what functions should it exercise?

Q How should the second chamber be elected ? Who should be eligible for election, and how long should they serve?

5. A Spring Convention Discussion: A vision of the democracy we aspire to have

This paper describes some aspects of current governance in Scotland and highlights three key topics with the aim of stimulating discussion on a vision of the type of democracy we aspire to have and an indication of the impediments to change.

Q Could Decentralised Direct Democracy and a democratically elected second chamber provide more checks and balances on government and the legislative process, and create a layer of protection for Scotland’s constitutional principles?

Q How do we move forward?

6. Acknowledgements & References

I am very grateful for the invaluable contributions and assistance of the following colleagues in the drafting and editing of this discussion paper –

Respect Scottish Sovereignty – Henry Ferguson and Leah Gunn Barrett

Liberation Scotland – Sara Salyers and Geoff Bush

Constitution for Scotland – John Hutchison and Lorraine Cowan

John Brown

24 January 2025

References