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Democracy? Yes or no

Today's a day for thinking about the US Constitution.

There are two reasons for doing so. Yesterday, even a US Supreme Court which had been presumed to be more sensitive to the politics of the Republican Party than for many years, unanimously struck down the idea of absolute power residing with the President. Although it's not a matter to which I have given much attention, it reinforces my resistance to the English idea of Mayors with absolute, albeit local, power being introduced into our country. One may well get faster decisions made when you concentrate power in the hands of one person. But it seems unlikely that one gets better decisions.

The most important words in the US constitution are the first three; "We the people". They capture a vital concept that raises the citizens above those who exercise power, with their consent, on their behalf. It's called democracy. "Demos", the Greek word for "the people". "Kratos" meaning "power". Coined by Cleisthenes 2,500 years ago.

It is often said that the UK has no constitution. It certainly has no written document to which the citizen can turn as evidence of malfeasance by the state when it abuses the power lent to it. Indeed, we in Scotland too, have found ourselves in mystery land.

We sort of have a constitution that can be cited in the courts if need be. The foundation comes from the 1998 Scotland Act which caused the Scottish Parliament to be resumed. The first words spoken by a member of our Parliament after the election in 1999, other than those relating to the swearing-in of members, were "The Scottish Parliament .. is hereby reconvened".

They were spoken by the "Oldest Member", Winnie Ewing. By coincidence, today is her birthday; her ninety-first. Happy Birthday, Winnie. (see https://www.youtube.com/watch?v=PB_aOAO0c4g)

There has been further legislation in the Westminster Parliament to extend the 1998 powers. And administrative devolution of some powers. That creates areas where decisions can be taken in Scotland but there is no power to legislate. An example is a power that I could exercise under Section 36 of the 1989 Electricity Act when I was a Minister. It meant I could authorise large power stations to deliver their power to the grid. But I could not have Parliament change the law on this matter.

But even after only twenty years, there is no single document, law or book that defines the powers we have. This is the least satisfactory part of what we have inherited from Westminster.

By contrast in the USA, if they want to change their constitution it needs a public vote, a two-thirds majority in the Senate and in Congress. And the agreement of three-quarters of the States of the Union. The President has absolutely no legal role in any of this.

Changing Scotland's constitution lies entirely with Westminster. Boris Johnston can rise from sleep on a Monday morning, put forward a Bill on Tuesday, accelerate it through Commons and Lords, ask for an urgent Royal Assent and see it on the statute book on Friday.

There are no constitutional checks and balances to stop his doing that. No need for consent from any legislative bodies beyond Westminster. No requirement for a supermajority, be that two thirds or three quarters. Not even a requirement that the legislators endorsing his proposal, or even merely a majority of them, have had to have been elected by the citizens. The unelected House of Lords outnumbers the House of Commons where MPs sit.

And actually, it is much much worse than that. They could, almost certainly, do most of the damage via an Order in Council. In other words, take such an Order, which is read in the presence of a wholly silent Monarch, listening not speaking, to a meeting of the Privy Council. It only requires the presence of three members for such a meeting to be valid. There is no requirement for any waiting time. It could be law immediately after such a meeting.

Well that's a long and entirely theoretical proposition, isn't it? No. The current policy of the Government at Westminster is to remove environmental oversight and many of the rules that protect the quality of our food and how it is produced from our Parliament. And more.

In the USA, this would be a fundamental constitutional change which requires a multistep process using rules, captured in a codified constitution, that ensure that minorities are not disadvantaged, that States are part of the decision-making and the people are in control.

But in the UK, our liberties are unprotected.

We have no words with the legal force that comes from the US Constitution's purpose to; "establish justice, insure domestic tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of liberty to ourselves and our posterity".

That doesn't remove debate about the meaning of that from public discourse. But it provides an anchor.

People, I believe only a modestly sized minority, are campaigning against being legally required to wear face masks in response to the pandemic. They point to "liberty to ourselves" as being where their right to resist comes from. But those in favour of face masks, a substantial majority, point to "general welfare" as being why they should be worn.

To paraphrase something I read yesterday said, and I paraphrase:

"People are entitled to harm by themselves by their idiocy but they are not entitled to use their idiocy to harm others".

In other words, "liberty to ourselves" is clearly restricted by rights that others have to "general welfare". Were that not so, I could physically harm anyone who in any way restricts my liberty, say by obstructing my chosen path along a pavement.

No equivalent argument about the constitutional position can take place here. Because there is no document which I can pick up to tell me what it is.

Broadly speaking, Governments have been under the control of people of moderation. That doesn't mean that they abjured radical action. But it did mean they (mostly) respected the rights of minorities and people with rights which were about to be extinguished. Nor is this a left-right statement. It is not restricted to one or other.

But for the first time for a century, we seem to have acquired a peacetime Government at Westminster that is disconnected from any constitutional sense of duty.

It is not a Government prepared to listen. But it is not hard of hearing so much as hard of heeding.

It's time to have a formal constitution to protect the rights of the citizenry and their democratic institutions.

We need a democratic revolution. For Scotland, yes. But also for my many friends and relatives South of the border too.

We are nearly as democratic as The Democratic People's Republic of Korea.

The UK is not democratic.

Or the people's.

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