Dr Elliot Bulmer: Moderation and restraint in a Scottish constitution

On the proactive side, elections enable the people to influence the direction of ­government action. Competing parties offer manifestos ­containing policy commitments, which they ­undertake to implement if returned to office. When a coalition government is formed, the government’s programme will be based on a coalition agreement, usually a negotiated ­compromise between the manifesto of the parties forming the coalition.

Of course, the practice of government is more complex than that. No government is ever able to carry out its manifesto commitments in their entirety.

Events get in the way. Governments must use their initiative to tackle emerging or unseen problems. Where no specific manifesto commitment applies, governments rely on their broader and more general mandate to govern for the public interest as they see best in the ­prevailing circumstances and conditions.

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On the reactive side, governments are held to account for their record: how did they do? Again, this is not just a tick-box exercise, scoring against specific manifesto promises. It ­involves a broader assessment of the government’s ­honesty, competence, and overall results.

Voters have a lot, then, to balance when they make their decision. They are casting a ­judgement on the past and expressing an opinion about the future. When it works, this electoral mechanism of proactive and reactive public control should force governments to track, more or less closely, the public interest, as that interest is expressed by public opinion.

But what happens when governments – whether motivated by ideological doctrine or by the selfish motives of small, powerful, groups – stray from the public interest? What if they force through policies to which most ­people ­object?

Perhaps they can be held to account at the next election, but when people vote, they have to take a general view of the government’s ­performance and must weigh all that against the offerings of a limited number of other viable parties. Public accountability is general, not specific. People might disagree with this or that policy, but ask themselves: “Is it really serious enough to let the other lot into power?”

Besides, by the time the next election rolls around, irreparable damage might already have been done. It is easier to do stupid, damaging, things than to undo them.

Accountability at elections is vital, but it is not enough. There also needs to be some sort of accountability – and restraint against ­waywardness – between elections, too.

Obviously, politics goes on between ­elections. The opposition parties can speak out in ­Parliament and can try to bring media and ­public attention to the issue. People can (in a free society where civil liberties are protected) go on marches and demonstrations. These ­techniques are not always futile. Governments – surprisingly often – do make concessions and modify their proposals in response to ­opposition amendments or public criticism.

However, these techniques tend to be ­effective only at the margins of policy, on ­matters of ­detail, or on issues relatively low on the ­government’s agenda. U-turns on major policy decisions are rare; they do happen, but more often at the

instigation of the markets than the public.

Simply having a written (“supreme-and-fundamental law”) constitution helps. It protects the institutional integrity of the state, and basic rights, from erosion by hasty legislation. Much of the UK Government’s agenda – weakening the judiciary and human rights protections, and voter suppression – could be thwarted by a good constitution.

But a lot of bad, ill-considered, hasty, ­unpopular, narrowly ideological, legislation can slip through the gaps because no specific ­constitutional right is undermined. Take the privatisation of the Royal Mail, for example. A written constitution probably would not stop that on constitutional grounds. It’s a policy ­decision. Some sort of filter that can apply restraint between elections is needed.

That filter might be a second legislative ­chamber, not merely replicating the first, with enough power to offer real restraint. It might be some other mechanism. The Kirk has the ­Barrier Act, requiring key decisions to be sent back to Presbyteries.

In 2002, the SNP proposed a draft constitution that would enable 40% of MSPs to ­suspend legislation for 12 to 18 months, pending an appeal to the people in a referendum. Similar ­provisions – enabling an appeal from the parliamentary to the popular majority – exist in Latvia, Denmark, Ireland and Italy’s constitutions.

If an independent Scotland stands on the prospectus of offering good government, we need to consider such ideas. Of course, governments need the power to do what must be done.

The aim is not to frustrate policymaking, nor to make reform impossible. But there has to be a way to stop an independent Scottish Government from doing things that are silly, damaging, dangerous, irresponsible, or wildly out of touch with public sentiments.