'Constitution' by See-ming Lee.

The British left south of the border took little interest in Scottish politics even after the SNP became the government, seemed unconcerned about the agreement to hold a referendum there, and then largely ignored the campaign. With the exception of openDemocracy, Red Pepper’s openness to invention and creation, and the New Statesman under Jason Cowley, who grasped the profound cultural impact for Britain of somewhere that was alive and not Westminster, the Anglo‑British left patronised the whole experience. It was petty nationalism; the priority is for working-class solidarity across borders; we know better than to be diverted from the ‘real’ issues – all the mind-numbing, thought-suppressing clichés that condemn the left to the comforts of futility came wheeling out.

But in the course of the summer of 2014 it become clear that, in addition to Greece and Spain, another country was giving birth to a popular politics of opposition to neoliberalism. It was as if, when viewed from space, the English left was as much in the dark politically as North Korea can be seen to be in terms of electric light – while north of Hadrian’s Wall, far-reaching argument was lighting up cities, towns and islands and an entire country was visibly alive.

How to account for this exceptional, intelligent release of political energy across Scotland? The lesson is surely the importance of the shift from one level of politics to another: from the level of policies, legislation and parties to the more foundational level of political structure, in effect the constitution. Not in its legal and specialist form, but with respect to the nature of government, the relation between government and citizens and how these relations are organised in a democracy so that the people can genuinely hold power to account – issues of equality, therefore, the nature of rights both social and individual, the nature of sovereignty in the modern world and what kind of country one wishes one’s country to become.

This shift came about because, in effect, the future of their constitution as a whole was put to the people of Scotland, for real, in real time, with a process that had a beginning, middle – a long middle that allowed all the issues to be considered – and a decisive conclusion. That this happened was thanks to the skill, popularity and relative lack of corruption of the SNP and its leader Alex Salmond. But what then happened took even him and his party by surprise.

Revolution of the normal

When the referendum was being negotiated it was the view of Alex Salmond and his colleagues that the ‘settled will’ of the Scottish people was ‘devo-max’, not full independence. The prime minister, David Cameron, undoubtedly knew what they thought and why – the secret services would have listened in, since the ‘security of the country’ was at stake. Cameron resolved not to allow a third option of devo-max, or domestic home rule within the UK, on the referendum ballot paper. That way, he would deprive Salmond of an easy success. Then the prime minister sat back, confident of a victorious No vote. For his part, Salmond agreed to a two-option referendum rather than trying to stage his own, because, he explained, the vote had to be a fully legal process endorsed by the Westminster government.

The SNP then ran a campaign that seemed to me at the time, admittedly mostly from afar, to be over-cautious and too much like a party political campaign rather than a referendum on the future of a nation. But Salmond’s judgement was that his country’s temperament was sober rather than radical. His emphasis was on the reasonable nature of independence with him in charge, a friend of the queen, keeping the pound.

Yet this tapped into what I call “the revolution of the normal”. Full employment, greater equality, free education, decent child-care, a reasonably funded health service, not having lords and ladies as your legislators, in short becoming an average European country, what could be more reasonable? Yet such things are transformational in the UK context; an argument beautifully made by Adam Ramsay in a widely read openDemocracy essay, Scotland isn’t Different, it’s Britain that is Bizarre.

The SNP’s call to make Scotland a regular country exposed the constitutional fit between the hyper‑centralised Westminster system and the neoliberal world order. This started to become apparent as the referendum conversations intensified. The Yes campaign began to be driven by the energy of young people frustrated by the lack of options within the legislative institutions, by communities feeling abandoned or taken for granted by the old political parties, by policy thinkers seeking creative ways of responding to a profoundly changing world. The deeper that issues were mined for ideas and alternatives, the stronger the pull became.

A deeper level of politics

How do we best understand this form of politics? The mental inheritance of the left can lead to a language that says the Scottish movement embraced a ‘deeper’, foundational level of politics and political argument among a critical mass of public actors and citizens and saw a shift that reflected a widespread recognition of the exhaustion of the superficial level of politics, revolving around policies and parties. Not just an intellectual process, in other words, reflected in opinion polls and the like, but the active assertion of a desire, a demand even, for the creation of a deeper level of politics.

In English terms we can see a glimmer of this in direct‑action tenants, like the E15 women, insisting on their right to housing. They are in effect demanding a political solution based on a fundamental right to a home – rather than this or that policy.

There is a danger of trying to fit this approach into the classic analysis of base and superstructure. The radical politics that we need demands fundamental revision of classic Marxist determinism and can’t be shoehorned into it.

We should define our politics around the central concept of livelihood. As Raymond Williams argued, this unites production and consumption, family and work, generations and environment. For all to enjoy the livelihood that fulfills our potential we need a cluster of networks, some of which will be local communities, some employment-based, some educational and others governmental: local, national and international.

A constitution sets out the framework governing our networks. It fulfills three functions (and all constitutions, both codified and uncodified, do this).

• To establish the rights of individual citizens, our claims on the institutions of power and the authority that institutions can exercise over us as citizens.

• To set out the power relationships between the different institutions of authority within a society.

• To express what kind of community a society aspires to be.

The last defines what a constitution means, its moral purpose, for all constitutions are above all claims about how a society should live. They stand or fall by the way they are lived, not what is written down, important though that is for them to be owned by all citizens.

According to vulgar Marxism economic realities determine all such superstructural, ideological emanations and going on about them as if they matter or are fundamentally influential is a bourgeois deviation.

Who, with a mite of intelligence, will gainsay that states are shaped by the modes of production of their epoch? But how things are determined within an epoch, from one century to the next, is another matter. Determination in this context can be governed ‘from above’: a country’s constitution can define what is possible, can release or confine social energy, can defend or undermine the commons. Hence the importance of who decides the constitution. If, genuinely, the people make the final call, then a society has good reason to describe itself as a democracy.

The constitution is not a materialist base, but it is a determining framework. To see this involves raising our heads and looking up not down.

This should now be the ambition of the left: to add to its economic and social demands the vision of a democratic constitution, a new settlement decided by an open process, bringing in as many allies as possible from across the spectrum as it will have to belong to the right as well as the left if it is to command legitimacy. The time is ripe for a return to the call for a new constitution.

Scorn from the left

The call first surfaced at the end of the 1980s and led to the important yet partial and incoherent changes of New Labour. Then much of the left scorned such efforts. It is worth looking at one example because it signals the profound cultural growth that the Anglo-British left will need if it is to catch up with its Scottish comrades.

Today Larry Elliott, in his Guardian column, is an outstanding critic of the criminal foolishness of coalition economics. Back in 1998, with Dan Atkinson, he published The Age of Insecurity. It opened by declaring: “The central struggle of our time is that between laissez-faire capitalism, which represents the financial interest, and social democracy, which represents democratic control of the economy in the interests of ordinary people.”

But for these authors democratic control of the economy did not extend to advocating a democratic constitution. They tagged the campaign for constitutional reform as a “mystery tour down a blind alley”. Charter 88 was derided as “pseudo-underground chic”. Will Hutton, who was on the Charter 88 council was scorned for connecting the “winner-takes-all” electoral system with the cash-in-your-winnings of the City – not praised for his insight. The British constitution, far from being ‘semi-feudal’ as we reformers claimed, had no more oddities in it than most other European democracies.

Scotland had just voted in a referendum to have its parliament. Elliott and Atkinson saw its new parliament as having “a rag bag of functions and responsibilities, the selection of which was a poor advertisement for ‘rational’ constitutional reform . . . Scotland, with its new legislative class itching to start work, marked a key point of fusion between constitutional reform and social control.” The authors concluded that, “There is not and will never be anything specifically ‘left-wing’” about constitutional reform. It may sometimes be good, they concluded triumphantly, but it is “a terminus not a corridor . . . Hugely irrelevant to Britain’s real problems”.

Wrong! Indeed you could hardly have been more mistaken! And the English left who so ignore, disparage, patronise and sideline full-scale constitutional reform, thinking electoral reform is all that is needed and then they can walk off with the British state, should reflect on this. What the reform movement’s success in Scotland demonstrates is that taking on the constitution, far from being a dead end, blind alley or ‘terminus’, opened up the whole field of politics to the public - and in so doing unleashed a democratic process that cannot but confront corporate dominance.

The question, then, for the rest of us in the UK is: can we now learn from this and start to generate equivalent, connecting energy? 

No longer scandalous

Outside the old doors of parliament the idea of a new constitution is no longer scandalous. During the hacking controversy, leading newspapers called for a ‘first amendment’ to establish the right to publish. Since Edward Snowden’s revelations many have called for a ‘fourth amendment’ to safeguard privacy. With the creation of secret courts, some seek a ‘sixth amendment’ to protect the right to due process of law. But we do not have a constitution to amend or a Basic Law that can entrench such principles.

Codification is necessary as a focus; the aim has to be a public process that makes the country a self-confident democracy – a process that lets us translate our confidence, in which we are not lacking as a country, into a constitution we can call our own. The last thing we want is a constitution imposed by the political class that simply writes down the existing system (a hilarious sketch of what this would be like was set out in The Unspoken Constitution published by Democratic Audit, it’s opening words: “We, the elite”).

Thirty years ago the received wisdom judged that a new constitution was simply impossible this side of an insurrection or defeat in war. Britain’s framework was regarded as virtually eternal. We only did partial constitutional change once every 50 years or so when it might just be needed, certainly never a constitutional ‘revolution’. Back then, however, the idea of a Human Rights Act was ‘foreign’; there were no Scottish or Welsh parliaments; freedom of information was for Americans; the government of London could be and was summarily abolished; and numerically most members of parliament inherited their seats in the legislature.

Today, by contrast, these changes and more have broken the coherence of Westminster’s rule and political specialists are researching how to hold an effective constitutional convention. On the right, Conservative Home carries posts arguing we must Look at our constitution as a whole, or, We need a written constitution, or, A new model for the constitution. And from the House of Commons itself, A New Magna Carta?, a report published by the Select Committee for Political and Constitutional Reform, sets out what a written constitution could look like.

The question, then, is not can it happen, it certainly can, the time is ripe. The issue is how can it happen.

We need a moment that starts a chain reaction, which brings together as wide a connection of forces demanding a new settlement as can be mustered. Not a traditional campaign, or an alliance of NGOs concerned with their remits, but action with a faster foot – which releases energy rather than not confines it – with as widespread and open a network of alliances as possible. We need media partners; a call to arms that joins the issues together and shows how they are connected in life as well as argument; support from writers, journalists, musicians, scientists, filmmakers, bloggers, commentators and scholars; connections to many local non-party movements defending housing, communities and local environments; websites and debates and as many campaign groups as possible. In short, a movement from outside the official system with the capacity to redefine it.

Some of us want to bring the idea of an alternative, democratic constitution to life by linking it to the celebrations of the 800th anniversary of the Magna Carta in June 2015, a month after a General Election whose campaign has reinforced England's twisted view of the constitution that protects its established order.

The official celebrations are designed to embellish the status quo in self-congratulation. But it is impossible for unease not to creep in. The Magna Carta was an elite stitch-up by feudal barons angered at being over-taxed; the rights it claimed were privileges for free men only and it discloses the privileged, feudal roots of our government. That was then. Yet at the same time it made the idea of the rule of law and access to justice for all part of our inheritance, it rewarded resistance to arbitrary power, its success depended on writing down principles of government, and its association with the Charter of the Forests (‘Magna’ originally identified it as the greater of two important charters) set out rights to the commons.

The legacy of the Magna Carta, poses four sets of contemporary questions:

1. How do we check arbitrary power today and ensure both the executive and corporate ‘barons’ are accountable?
2. How do we ensure there are basic rights for all, protected from government and corporate power, including access to the law?
3. How do we protect and develop our commons: essential public goods and spaces, including the environment?
4. And who are today’s Barons?

They put party politics into the shade.

This article was written in January for Red Pepper (many thanks!) where it has just been published. It is now slightly added to.