American constitution being signed - Howard Chandler Christy/Wikimedia
Scotland is to have its own constitution. Two years exactly to the day that Scotland could become an independent nation, Deputy First Minister Nicola Sturgeon made the announcement that many had long anticipated and suspected.
This was a significant moment with huge import, whatever the result of the independence referendum. It can be seen as confirmation of Scotland’s slow reassertion of itself as a distinct political community, but was also filled with all the usual tropes and references: ‘enshrining Scottish values’, the ‘sovereignty of the people’, and the evoking of a ‘Scottish Constitutional Convention’.
This revealing announcement seems to signify the strange non-death of ‘civic Scotland’ – that amorphous part of polite respectable society, first identified hanging around middle class, well-heeled parts of Edinburgh and Glasgow in the early 1980s, at least in the eyes of government.
This group has been in decline for most of the past decade and seemed to have been finally slain by the SCVO-‘civic Scotland’ manoeuvrings post-2011 on whether to have two questions in the referendum. But these recent pronouncements seem to indicate that the Scottish Government see it as helpful to refloat the concept yet again, and to get Scotland’s great and the good out for one last hurrah!
This contains an element of Groundhog Day. This may turn out to be alarmist but it seems that, to some in the Scottish Government the highest aspirations of our democracy seem to entail emphasising that we are not the broken system of Westminster, invoking all the usual Scots’ totems we have gathered these last couple of decades, and bringing out the usual worthies from the cobwebs for one last nostalgia tour like a fading rock ‘n’ roll band.
The announcement from Nicola Sturgeon has seen many of the currents of radical, pro-self-government, self-organising ‘third Scotland’ worry that this is part of the evolution of the SNP being taken over by the system and the system becoming the SNP. In short, it may indicate the opening of the last couple of years, when the SCVO-led initiative for two questions blew up, being closed again as normal service resumes.
It is possible to imagine a different way even from the announcements so far. The Scottish draft constitution could be a template document set out to inspire, provoke and facilitate discussions going on the detail, content and purpose of the final outcome. Lallands Peat Worrier took this view, stressing the difference between a draft and final constitution, between ‘Independence Day’ and ‘Constitution Day’. A Scottish Constitutional Convention is only a name and could be used to strike out from the old practices of invoking the people but never letting them speak, and developing a far-reaching participative, deliberative democracy which makes real the myth of ‘sovereignty of the people’.
This thought cannot be done by stealth, invoking without challenge the old mythologies and complacencies about Scottish society. We cannot see the continuation of traditional ways of running Scotland by committees of the great and good, and the civil service as the apex of participation and people power.
The Scottish Constitutional Convention of the 1980s was a top down gathering of Scotland’s non-Tory (and non-SNP) political establishment. It evoked the language of popular sovereignty, but never imagined or practiced it, instead being a gathering of alphabet soup Scotland – COSLA, STUC, SCDI and others.
We could dare to do things differently this time. We could notice the atrophied state of much what passes for Scottish democracy: the missing Scotland, the emasculated state of local government, the centralisation of much of public life.
We could raise our heads and draw on the numerous attempts at greater democratisation and participation across the world. There is the new constitutionalism across the world, from the former Eastern European Communist countries to Latin America, with just as crucial as what is in their constitutions being how they are written, who owns them and how the public find voice and ownership of such a process.
The new constitutionalism is also not just about narrow legal terms and documents but how such matters relate to economic, social and cultural rights, the position of women, minorities and more in society. There are examples we can draw on from around the world: the Icelandic constitutional practice (even though it was rejected), the Australian National Convention, or the Irish Constitutional Convention’s practice of drawing on individual citizens.
Nearer to home across Scotland there are lots of positive initiatives where people are taking power into their hands and having their say. There is the work of ‘mini-publics’ seen in the So Say Scotland Citizen’s Assemblies, the spaces created by the Electoral Reform Society Scotland and its deliberative forums, ‘the art of hosting’ conversations, and the power of artistic activism showcased by the recent work in Scotland of the New York based Centre for Artistic Activism.
In parts of Scotland a new, more fluid, pluralist, energising society is emerging which does not see the old, straight-laced ways of operating as the answer. The patchwork democracy of these new forces, voices and practices would make it tragic if we just settled for revisiting the unimaginative methods of operating of the old system, elites and ‘civic Scotland’.
There is another dimension to the process of making Scotland a more democratic society and constitution making, and that is the party/government distinction. A constitution has to come from popular deliberations and be owned by the people. The current pronouncements from the Scottish Government blur the boundaries between party and state, and make it unclear who would own this and how it would open up.
All of this is a work in progress. It is a set of processes evolving and being made as we speak. Yet without debate and critique it is more than possible that traditional, conventional Scotland will take hold of the process and pretend that by talking to itself it is allowing the people to see the inner workings of power.
Institutional Scotland was happy to administer a society which for decades has been characterised by a truncated, atrophied democracy, the constant evoking of comforting myths, and a huge swathe of Scotland being excluded and marginalised, while being continually spoken for and invoked.
It is not surprising that the independence debate has come about at a time of rapid change, uncertainty and disruption in Scotland, the UK and the West. There is disorientation in this for some, but most of this can only be welcomed north of the border in a society which was until recently highly managed, ordered and deferential.
We cannot then let the debate be about returning to some of the old ways by which the system maintained itself, and which the Constitutional Conventions we have had and myth of ‘civic Scotland’ have been part of. The making of a more democratic, progressive, open Scotland was never going to be a tidy, linear process. It was always going to involve action and reaction, and at times it was clear that the SNP and Scottish Government would stand with the forces of caution, conservatism and closure.
None of this is yet definitive. But if people want to live, inhabit and create the different Scotland which informs much of the rhetoric of the independence debate, they have to link up words and deeds. That means not having a closed order constitutionalism which draws from polite circles and the great and good, while letting the best pretensions enforce the political and social apartheid of the previous generation.
Why don’t we take the aspirations and myths of popular sovereignty and Constitutional Conventions, and fill them with the energies of the DIY cultures and ethos of the self-organising ‘third Scotland’ and the new generation of activists, campaigners and do-ers who are emerging? Such a shift would be a watershed moment in the democratising of modern Scotland, and a signal that we have learnt from our own past and myths about how to do things in a very different, bolder and more open way.
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