Free Us From These Politicians - However They’re Elected

06 Apr 2006

A version of this article by Tom Miers appeared in The Scotsman on 6th April

4th Century Byzantium was obsessed with one topic only. An exasperated traveller parodied the inhabitants’ passion for discussing abstruse points of religious doctrine: “If you desire a man to change a piece of silver, he informs you wherein the Son differs from the Father; if you ask the price of a loaf, you are told, by way of reply, that the Son is inferior to the Father; and if you inquire whether the bath is ready, the answer is, that the Son was made out of nothing”.

So might a visitor to 21st Century Scotland be bemused by our seeming fascination with constitutional minutiae.

Will the next Lonely Planet warn its readers that “Desire an Irn Bru and you’ll be told wherin the single transferable vote differs from first-past-the-post; if you ask the way to Linlithgow you’ll be told the answer to the West Lothian question; and if you inquire whether your fish supper is ready, the answer will warn you of the perils of fiscal autonomy?”

You could be forgiven for thinking we are not far off this barmy experience. The last few months have been awash with constitutional musings from all quarters; the Arbuthnott Commission reported on the tangle of different voting systems; Lord Steel told Liberal Democrats that they should advocate ‘fiscal federalism’. The Conservatives have promised to stop Scottish MPs from voting on England-only matters.

There is a growing consensus that the current arrangements have two main flaws. First, Scots Westminster MPs have anomalous rights to vote on domestic policy matters in England but not in Scotland. Second, the Scottish Parliament’s budget is raised from taxpayers who have no say over its election. There has been no surer recipe for waste and profligacy since the Americans cried “no taxation without representation”.

Hence the clamour for change, which will doubtless lead to some kind of reform before long.

But what if we’ve got the wrong end of the stick?

A new report by Dr Craig Smith of Glasgow University, suggests that we have.

His paper, Restoring Liberties, says that it doesn’t matter so much who governs, and how we elect them, as what they can do once in power.

In a previous work, Taking Liberties, Smith argued that modern democracy has developed in a way that threatens to undermine the very liberties that it was originally intended to protect.

All democratic states have seen a dramatic increase in taxation, increasing regulation and a growing body of law. As constitutional checks and balances have been undermined, the shackles on majoritarianism have fallen away. Our government is blithely repealing long cherished hindrances on tyranny such as Habeas Corpus, Trial by Jury and Double Jeopardy. Politicians think nothing of banning adults from making their own moral or lifestyle choices as long as they are backed by a majority of opinion.

What has gone wrong? How did our constitution, with its careful accumulation of freedoms and limits on government power, come to this pass?

Smith’s contention is that unbridled democracy leads to a state of pervasive government interference, as politicians build coalitions of interests to win power at the expense of minorities. Taxes cannot fall much below 40% of GDP without the opposition offering more ‘pork’ to the other more-than-half. Crucially, because legislation is rarely reversed, over-government is inevitable.

Restoring Liberties offers five principles for constitutional reform if we are to resuscitate the freedoms of yesteryear.

First, constitutional rules should be fixed and hard to change without lengthy consultation and overwhelming support.

Second, the constitution should enshrine certain unchanging liberties such as the right to trail by jury and freedom of expression.

Third, power should be divided between different branches of government which represent the population in different ways. Smith suggests a strengthened second chamber, including members selected by lot (as with juries), so that public opinion is reflected without the intervention of political parties. Even more radically, far-reaching government bills such as budgets should require more votes than a simple majority. These measures would prevent the tyranny of the majority (or, as is the case in the UK now, the tyranny of substantial minorities - Labour won power with only 37% of votes cast at last year’s election).

Perhaps most importantly, Craig Smith advocates time limits on all laws. Without a mechanism for actually reversing the tide of legislation and therefore restricting the total body of law, other checks on the executive only delay the accumulation of state power and could even leave us stranded in over-government.

He echoes Thomas Paine in saying there is no reason why we should be bound by the laws of previous defunct politicians. So the current crop should spend at least as much time reviewing old laws as passing new ones.

Finally, Smith turns his attention to accountability with his fifth principle, and adds his voice to those calling for ‘fiscal autonomy’. All tiers of government should raise their funds from those who elect them.

Craig Smith’s ideas may sound radical in an age when we increasingly accept the strictures of government, however illiberal, just because they are ‘democratic’.

But before we continue our search for the best way of electing politicians, should we not pause to consider what they should be allowed to do in the first place?

Restoring Liberties & Taking Liberties are available from the ‘Research & Publications page of this web site.