By David Millar
Mr Gladstone and the Claim of Right
Has anything good come out of Scotland? Yes, lots of things – whisky, Rabbie Burns, Sean Connery, to name but a few, and – the Scottish Constitutional Convention.
What was the Convention then? And does the European Constitutional Convention owe anything to it? About 100 years after the Grand Old Man, William Ewart Gladstone, introduced a Bill for Home Rule for Scotland, some Scots came together to sign the Claim of Right 1989. This Declaration claimed that Scotland was a nation – albeit a “submerged” one – and that having been independent with its own Parliament until 1707, the time had come to re-establish that Parliament within the framework of the United Kingdom.
The Convention grew out of the Claim of Right, with the aims of defining the powers, composition and structure of a Scottish Parliament, and enlisting the support of the Scottish people in creating – or re-creating – their Parliament, which had disappeared in 1707.
What were the defining characteristics of the Scottish Constitutional Convention (SCC)? Can we say that they are in some way related to the European Constitutional Convention (ECC), due to meet from February 2002 to April 2003?
The Scottish Constitutional Convention
The background to the SCC was the Scotland Act 1978, which offered limited devolution of powers to a Scottish Assembly. The subsequent referendum in 1979 resulted in a small majority of votes for the devolution settlement proposed in the Act, but this majority was insufficient to trigger the devolution settlement; this failure brought down the Labour government and led to an election won by Mrs Thatcher, leading the Conservative party.
After 10 years of despair and recrimination, but eventually hope and reconciliation, in Scotland, the Claim of Right was signed by persons representing a wide cross-section of Scottish opinion. The Convention was created, invitations were issued to all political parties, churches, local authorities, business and trade union organisations, and indeed to all civic organisations in Scotland, to send representatives. The Labour, Scottish Liberal Democrat and Scottish National parties joined, but the latter left after three weeks; the Scottish Conservatives refused to participate. All the major churches took part, as did most local authorities. Of business organisations, only the Small Businesses Federation joined: the banks, the financial sector, industry and commerce were generally hostile. The voluntary sector and smaller political parties such as the Scottish Green Party were, however, enthusiastic participants.
In the six years of its work, the SCC succeeded in defining an outline of the powers, functions, composition and procedures of a Scottish Parliament. While the SCC’s Executive Committee met in private, public sessions of the Convention itself were held in various parts of Scotland, in order to encourage public involvement. By 1995, when it presented its final report to the Scottish people at a lively ceremony in Edinburgh including women drummers, dancers, singers and others, the Convention had, by a series of unanimous decisions, laid the foundations for the renewed Scottish Parliament.
How was all this financed? Local authorities in Scotland provided most of the funds needed to hold meetings, print papers and reports and publicised the campaign. Their authority to do so was challenged in court by the inimical Conservative Party but the court upheld the authorities’ right to spend council tax-payers’ money in this way.
In effect, the SCC’s work formed the framework for the Scotland Act 1998, which enacted the devolution settlement, and for the Consultative Steering Group’s report of 1999, which (with the tardy participation of the Nationalist and Conservative parties) in turn set out the principles, aims and structure and procedures of the Scottish Parliament. The group was chaired by a government minister and included representatives of political parties, academia, business and the churches, the voluntary sector and local authorities.
In sum, the Scottish Constitutional Convention was an invaluable means of gathering support from key sectors of Scottish life and opinion for the eventual shape and character of the Parliament.
Where Scotland leads . . .
The obvious success of the Convention and the re-creation of the Scottish Parliament with powers over a wide field of domestic policy areas served as an inspiration for devolutionists in Wales, Northern Ireland and the English regions. The Convention’s Report, the government White Paper on Scottish devolution of July 1997 and the Scotland Act 1998 were closely studied in Cardiff and Belfast from 1995 to 1998. These two capital cities achieved their own assemblies in 1999 – which left old England trailing behind as the Celtic nations surged towards devolution.
Nevertheless, years of work in the North-East on regional autonomy led in 1998 to the creation of a North-East Constitutional Convention, chaired by the Bishop of Durham. Its success inspired the North-West, Yorkshire and Humberside, the West Midlands and the South-West Regions all to establish Constitutional Conventions based on the pioneer one in Scotland. By this time, London had voted on a Greater London Assembly, leaving only East Anglia, the East Midlands, the South East and Wessex without a regional chamber or constitutional convention. Thus seemingly – and perhaps surprisingly – the SCC has proved a paradigm for the regions of England.
. . . does Europe follow?
Does it push the bounds of credibility too far to see the European Constitutional Convention, agreed at Laeken in December 2001, as in some way influenced by the Scottish Constitutional Convention and its English offspring?
Over the centuries the Continent has given Scotland the basis of its legal system, its Calvinist Church (and thus the foundation of its education system), academic training for its clergy and academics and the rigour of its theological and philosophical thinking, among other gifts. Is the SCC an apt model, perhaps, for a Scottish response to its European benefactors over the centuries?
Taking in turn the events leading to the creation of the SCC, its characteristics, mode of functioning and financing, can we trace a relationship between the form and functions of the European Constitutional Convention and those of the Scottish Convention?
The European Constitutional Convention
The ECC found its origins in resolutions of the European Parliament (EP) dating back to the 1990s, in which the Parliament called, in summary, for the Treaties to be simplified and rationalised into a constitutional document; for the process of legislation in the Council to be carried on in public; for equal powers of decision for Council and Parliament on Commission proposals for new laws; on the whole of the budget of the European Community, including the Common Agricultural Policy (CAP); and on amendments to existing legislation such as that on the CAP; for direct election of the President of the Commission; and in general, for much greater openness and accountability to be shown by the institutions of the European Union to the public, and to each other.
These EP resolutions can be seen as the equivalent of the Scottish “Claim of Right” of 1989: they set out the aspirations, the reasoned objectives and the methods of achieving them by which the EP sets great store. They were accorded partial recognition by the Treaty of Amsterdam 1998, following strenuous efforts by the Parliament to persuade the governments to adopt them. The Declaration of Laeken, however, saw triumph for Parliament’s hard-fought campaign, when the governments agreed to set up the European Constitutional Convention. It comprises Members of the EP, of national parliaments, of the parliaments of candidate states and representatives of the governments of the member, and of the candidate, states as well as of the Commission.
Although it is clear that the devolution settlement in Scotland and the objectives of the ECC are far removed from each other in style and scale, yet certain affinities can be traced. First, the Scotland Act 1998 laid down the division of powers between the UK government and parliament on the one hand, and the Scottish Executive and Parliament on the other. The ECC has been invited to seek solutions to the problem of which competences, respectively, should be exercised by the European Union alone, which by the member states themselves, and which shared between Union and states.
Second, the Laeken Declaration sets out three challenges to the European Union, which “needs to become more democratic, more transparent and more efficient”. These are: to bring citizens, especially the young, closer to the European design and the European institutions; to organise a political union within the enlarged European area; and to develop the Union into a model in a new, multi-polar world. While these challenges are far broader than those facing Scotland, the measures to be considered for meeting them are surprisingly close, mutatis mutandis, to those already being introduced in Scotland.
Thus the attribution of competences between Union and member states finds a close parallel in the allocation in the Scotland Act 1998 of powers reserved to London, powers devolved to Edinburgh, and powers shared.
The Claim of Right for Scotland laid much emphasis on Scottish governance and the operations of the Parliament becoming open, transparent and accountable. The procedures of the Parliament, its relations with the Executive, and the relations of each with the people are based on these concepts. In a similar vein, the EP has sought transparency in proceedings of the European institutions, particularly the Council in its consideration of legislation and in publication of its documents.
A further field where similarities exist in Scottish and European constitutional construction concerns the content, on the one hand, of British constitutional instruments, such as the Scotland Act 1998 and the other devolution Acts, and the issue of the contents of the European treaties. There are some in Scotland, Wales, Northern Ireland and the English regions who see the constitutional future in terms of a neo-federal series of constitutional instruments, amounting to a written constitution. This approach is specifically highlighted as an option for Europe in the Laeken Declaration, with the Charter of Fundamental Rights being included in a basic treaty, and implementing legislation being gathered into a second constitutional text.
Finally, what of the inclusiveness of the ECC? Aside from representatives of the member states, the EP and the national parliaments, there will be representatives of the Economic and Social Committee and the social partners, and the Committee of the Regions will send observers. All this much as in Scotland. In addition a Forum (analogous to the Civic Forum launched in Scotland) is to be opened “for organisations representing civic society. It will take the form of a structural network of organisations receiving regular information in the Convention’s proceedings”, and making contributions to the debate.
It would be mistaken to claim that there has been a substantial direct influence of the Scottish Constitutional Convention on the ECC. Nevertheless, there are strong affinities in certain areas, and it should be recalled that the EP’s rapporteur on institutional questions for much of the 1990s was David Martin MEP, a staunch devolutionist and a member of the Scottish Convention. Equally one of the leading members of the EP’s Constitutional Committee since 1999 has been Andrew Duff MEP, a former Director of the Federal Trust, who will represent the EP, with others, in the ECC.
Perhaps the connecting thread between devolution of powers to Scotland, Wales, Northern Ireland and the English regions has – often sub silentio – been federalism, which in turn has been evoked by the leaders of Europe since the Schuman Declaration of 1950. Perhaps federalism’s decisive hour is at hand, when its advantages will be openly acknowledged both in the UK and in Europe, helping thus to create the truly democratic, transparent and efficient government so much sought by the peoples of Britain and the European Union.
David Millar OBE is a member of the committee of Federal Union. He was formerly Director of Research at the European Parliament. He may be contacted via email@example.com. The opinions expressed in this article are those of the author and not necessarily those of Federal Union. February 2002.