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Wednesday, 27 March 2013

Just what is a constitution for, anyway?

Much has been made of the SNP's public plans for a written constitution to be formed in the event that Scotland becomes an independent state following the 2014 referendum. The quest for codification is something that has been, if put unkindly, a perpetual pet project of many a constitutional reformer (myself included). Hardly any states do not have some form of comprehensive document detailing the supreme or basic law of their state: the United Kingdom, New Zealand, Israel (sort of) and Saudi Arabia lack a central constitutional document setting out the bodies of state and what they may lawfully do.

I have long been in favour of the codification of the UK constitution. Though we have relied, historically, on the evolution of conventions and ad hoc solutions to constitutional conflict, it has left us with a patch-work of law, much of which is incoherent and inconsistent. We also have anarchronisms like the Royal Prerogative, which though largely exercised by government ministers these days, provides totally unaccountable powers used for malignant purposes. Even devolution is by its nature constitutionally conservative: minimalist in the way it changes the way the state operates. It is a politically, rather than a legally entrenched settlement, which relies on goodwill rather than institutional rigour to deliver its aims.

Constitutional introspection, though a risk, is also an opportunity. Properly revisiting the way you do governance provides an excellent chance to clean up the loose ends of a constitution, and to start anew in other respects. Iceland recently attempted to crowd-source its constitution. Though I think that's not a particularly good way to do it, some degree of consultation on the specifics, before having a referendum to ratify the constitution, would be a good way to go about it. One of the strongest arguments I think that exists for Scottish independence is that the call for a codified UK constitution has gained very little traction. It is symptomatic of the institutional aversion of the British state to radical all-encompassing reform of the way it governs. In that regard, independence presents an opportunity to have a serious discussion not just about how the central state runs itself, but also what kind of relationship it has with more local forms of power.

This is why I am so disappointed that the SNP have tried to turn the debate about the constitution into something it's not. A constitution is supposed, for the most part: to declare as lawful the existence of the different branches of the state (i.e. executive, legislature and judiciary); the extent and nature of their powers and who may limit them; and to enunciate the fundamental rights of the citizens, which the state is required to guarantee as a pre-requisite for its legitimacy to make sovereign acts on their behalf. A constitution does not exist to restrict the state on matters of broad policy as to how a state should allocate its resources. It is in that respect that talk of constitutionally protected state-funded University tuition and council houses for all is an absurdity.

These things should not be constitutional rights. There is significant debate about how we prioritise state funding, and what public services we expect people to contribute to in other ways. Now of course there is an emerging, particularly solidified consensus within the western developed world that there is a general moral right to education, and to a home, and states recognise broad duties to deliver the goals of these social aims. In education, our states legislate to provide primary education for all who seek it, increasingly secondary education is provided by the state out of general taxation, and there is a recognition that to leave people destitute is something that is not acceptable. But these are not the same kind of rights as the right not to be tortured, or the right to freedom of expression. These are delivered through substantive policies and extensive discussion about how and where to raise taxes and distribute government spending. You get the big discussions about whether benefits and services should be universal, or whether they should be means tested. You get questions in the NHS about whether we should fund a cancer drug or prescriptions. You get questions about whether we should build a new school, amalgamate existing ones and so forth. And yes, we get discussions about whether Universities and student support should be funded out of general taxation, or whether students should make a contribution in-lieu of that support.

Let's just assume for a moment that you buy into the idea that access to University can only be secured through full state funding and that it is an imperative (for various reasons why this is wrong, see elsewhere on this blog). How has this and other provision of "free" education more generally been delivered in society. By a constitutional guarantee? Of course not. It's been delivered by ordinary legislation. In the UK, school education was delivered by the Education Acts in both Scotland and England. Yes, the Republic of Ireland has a constitutional commitment to the provision of primary education. This is a direct importation of the substantive expectaitons of the international agreements many western states have signed up to. But no one is seriously saying that that constitutional provision is any causal link to the delivery of primary education in Ireland.

Why does its state provide secondary education if that isn't in the constitution? Why has virtually every modern western liberal democracy, even that market driven United States of America, provided primary and secondary education through state funding for all those who need it? Because it's about a political consensus about the broad way tax should be spent, and not a fundamental right. That's why. No one seriously suggests that the state is fundamentally illegitimate if it were to start charging for these things, but they might accuse it of being undemocratic and unrepresentative of the views consistently expressed by people at the ballot box. Other states that deliver state-funded university tuition do so without a constitutional amendment. Meanwhile, South Africa has a constitutional right to education. Yet millions remain illiterate and living in absolute poverty. It would be an absurdity if a court were to insist, by judicial diktat, that a state keep a particular school open or keep a particular course at University running and such-like, to the exclusion of being allowed to do other things with its budget to try to provide different kinds of education to other people. To borrow the title of Ted Heath's 1966 Tory Manifesto, "Actions, Not Words". That's how you satisfy socio-economic rights.

But now let's suppose that governments did consider themselves bound by this constitutional law. What does the fact it's a constitutional law, and not an ordinary law mean? It means that it's likely to be more difficult to repeal or to change. Constitutional provisions typically require some sort of special procedure to be overturned, unlike an ordinary Act of Parliament, with the effect that if the consensus changed, or someone who did not share this policy came to government, they would be prevented from implementing their own economic policies by a static spending commitment that they could not alter. What right do the SNP have to entrench their own policies into the very legitimacy of the Scottish state? One of the most strongly resonating messages of the YesScotland campaign is that independence is not just about the SNP. It's hard enough trying to convince Unionists that independence isn't an eternal fiefdom for Alex Salmond without his party making clear that it is their intention to impose his manifesto in the constitution if his party have control over the constitution. If we are to have a clean slate, that means being able to make these decisions as a country for ourselves. Independence is about having more control over our own affairs, not less, and placing unnecessary limits on the policy process makes us have less influence over our own affairs, and actually, less democratically accountable.

Moreover, the SNP policy doesn't even resemble what we understand as a right. It's a policy. It doesn't enshrine and encompass a general principle about education. Free tuition in Scotland applies to a very distinct and carefully defined category of person. It doesn't apply to non-EU international students and (at the moment) rest of UK students. It doesn't apply to students who have to resit years and can't get false-start funding. It doesn't apply to postgraduate students (as every lawyer and teacher will tell you!). It is a very specific commitment to fund the tuition fees of those who are accepted to their first undergraduate degree who are Scottish domiciled or an EU student. It doesn't go to the heart of a fundamental "human" right, because it doesn't apply to all humans. It doesn't encompass education generally because many courses that people get offered to become a part of on merit cannot afford the post-graduate costs. It doesn't encompass all courses, but specific ones approved by the state. If you don't meet their special criteria for what constitutes education, you don't get help. There is no general commitment to continuing access to universities for lifelong learning and personal development. This is a policy, based on finite resources. And that's fine. But its not a fundamental right and it doesn't deliver or guarantee a fundamental principle. Provision of things is different from, for example, the right to free expression. We have the right to speak out and to communicate, but the state doesn't give everyone a phone and a newspaper business. You don't have to be socialists or communists to believe in human rights, because they don't require specific provision of things by the state, except insofar as the state interferes with your rights in other ways.

But actually, what this shows is that the SNP want to make the independence debate about something it's not. It's not about whether you get more or less "free" stuff on independence. It's about taking responsibility for our own decisions. Their policy is hotly contested in respect of what it guarantees. As I've shown elsewhere on this blog, the continuing existence of maintenance loans, which are repaid under the same system as fees anyway, actually means education isn't even a free and accessible endeavour. For those who earn a career average salary of £28.5kpa in today's money, the Scottish student finance system actually requires you to pay more for your education than the English one does. If you believe in the principle of free education, you have to go the whole way and have the guts to return to maintenance grants. That means either finding the revenue to pay for it elsewhere, or cutting the number of people that go to University. The truth is that if your principle is fair access to all, a form of graduate contribution is likely to be the best way to facilitate more education and better education throughout Scotland, even if we are well off and raise more revenue in an independent Scotland than we do in the current UK situation.

You see, socio-economic rights are complex. They're about the art of the achievable and how best to manipulate the productivity of society (largely engendered by market capitalism) to pursue social goals without reaching unintended consequences. This is the same week as news reports show despite free tuition, Scotland consistently performs less well than England at getting kids from disadvantaged backgrounds into its Universities. Independence is about facing up to these questions and trusting the Scottish people to come up with the best, often very nuanced, answers. Political grandstanding about jam and honey is just the inversion of BetterTogether scaremongering about how we'll pay for everything. The best argument for independence is that Scotland can make these decisions for itself in a way that engages its people to a better extent than the United Kingdom can. It's not about the particular policies. So please. Stop talking about them.

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