Scotland needs a written constitution for the sake of our institutions

Once a dry as dust subject for academics and constitutional scholars, institutions are now in the news. They are much talked about during the on going Committee hearings examining the behaviour of the Scottish Government. Politicians of all stripes praised the role of institutions in our daily life, and they are often seen as bulwarks of democracy in this country.

So, what is an institution? Well space does not permit an exhaustive description, but suffice to say the term might include, the courts and justice system, parliament, government, the civil service, the NHS and the BBC. And it is the case that our democracy depends on these institutions and the people appointed to run them.

Without them the country, and indeed, all countries could not function. If they did not exist, they would need to be invented. They make things happen. All our daily lives would be much poorer, and in some cases impossible, without effective institutions in place to serve our needs. We cannot do without them.

But, and here’s the rub. Who controls these institutions? To whom do they report? And because they are run by people like you and me, what happens when things go wrong?

In a properly ordered state, the role of institutions is determined by a written constitution that may also describe their roles and responsibilities. Now you can see where this is going. The UK has denied itself a written, codified constitution. It also maintains that sovereignty is vested in the “crown in parliament”. To be accurate, this is a specifically English view. Scots see things differently and the Claim of Right endorsed by the Scottish Parliament and its Westminster counterpart agreed that in Scotland sovereignty lies with the people.

Not that many legislators in Westminster are aware of this huge difference. They proceed, therefore, as if it does not exist.

So, the Westminster Parliament decides how British institutions operate. In practice, of course, what this actually means is that any Westminster government with a working majority decides. They decide who is appointed to head up these institutions, how they operate, what they cover, and what to do about mistakes. Ever wondered why colossal mistakes in British public life go unpunished, even though their perpetrators are well known?

It means, for example, that the Westminster Government can appoint Tory supporters and backers to run the BBC. As happened recently. Some might rebel against imposition of such leadership. But to whom could they turn? There is no over-arching set of principles that might constrain a government. Instead, they would need to appeal to the very people who made the appointments.

Actually, things are worse than that. Here are the words of a senior civil servant in Scotland: “the civil service is not recognised by the constitution”. If this means anything, it could be construed to suggest that the civil service floats in some ethereal, undefined realm all of its own. In practice, one suspects what it actually means is that the civil service is a wholly owned subsidiary of another institution – parliament. And in the UK, this often means a political party, when that party is in government with a working majority.

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In the UK it seems that we have the worst of all possible constitutional worlds. To some, the British system of governance seems riddled with blatant corruption and confusion. This is not accidental. If people are confused and doubtful it makes them easier to lead.

When constitutional questions arise, these are often answered by people with only the merest understanding of how effective constitutions work and an even frailer grasp on the truth.

It almost goes without saying that if Westminster rule is deeply flawed, any bodies that it spawns, such as those in Scotland, may well be afflicted by the same weaknesses. We saw some evidence of these flaws at the Committee hearings.

What’s to be done? First and this is a matter of increasing urgency, Scotland needs and deserves a written constitution framed in line with contemporary professional standards. It ought to vest sovereignty in the Scottish people and preserve their rights.

My contention is like marriage, our institutions are just fine. They are composed in many respects by folks who are diligent and of the highest integrity. However, to function effectively they must be beholden to the people they serve. This can only be secured by a written constitution that limits the scope of government, or any other institution, to abuse them.

Next week’s guest on the TNT show is Bob Ingram of the Constitution for Scotland. Wednesday at 7pm