Building a New Scotland: Renewing democracy through independence

The UK Parliamentary system

The UK is a parliamentary democracy, but the Westminster Parliament embodies the notion of unlimited sovereignty to legislate on all matters, free of any constraint from underpinning principles of international law or human rights, and now also from EU law. The Westminster Parliament cannot legally be bound or limited by precedent, conventions, or agreements with others or the courts. Effectively, the only reliable check on power in the UK constitution is the need to command a majority in the House of Commons: all the commonly understood rules and limitations on the exercise of the power of Westminster are contingent on and can be overturned by the views of the majority at any moment.

The Westminster system does not adequately recognise the multi-national nature of the United Kingdom nor protect the interests of its nations.

Within the Union as currently configured, there is a clear lack of any effective, let alone entrenched, constitutional safeguards to manage democratic differences of opinion between the nations of the UK or even, in light of such differences, to properly respect and accommodate distinct political identity through the devolved institutions. When differences exist – as over Brexit, for example – Westminster's will always prevails.

In the Scottish Government's view, continued Westminster sovereignty over devolved matters means there is no realistic prospect of effective reform of this system

Indeed, even very limited reforms, such as the Fixed-term Parliaments Act, can be, and have now been, reversed by Westminster in favour of traditional prerogative powers exercised solely at the hand of the Prime Minister.

The interests of Scotland can never be protected, much less guaranteed, within the Westminster system.

Westminster sovereignty would make it difficult to protect the interests of Scotland in any circumstances. However, population disparity makes this even more difficult and the Union even more unequal. Only 9% of MPs in the House of Commons are elected by the people of Scotland. While this broadly reflects Scotland's population share, it does not reflect a status for Scotland as one of four equal nations within the UK.^[35] England, the largest of the UK's nations, contributes 82% of MPs. On current population trends, by 2045 Scotland's population within the UK is estimated to be 5,385,081 of 70,968,244, or 7.6 per cent of the UK total,^[36] with reductions to Scotland's representation in the UK Parliament likely as a result of boundary reviews. As a result, the ability of people in Scotland to influence the UK Parliament and Governments that govern us – already very limited – will be diminished even further.

A result of this disparity in population is that, at every UK general election since 1979, the largest party after the general election would have been no different had Scottish MPs not been counted.^[37] For 39 of the 77 years since the Second World War, Scotland has been governed by UK governments that were elected by fewer than half of Scottish constituencies. The Conservative and Unionist Party last won a majority of seats in Scotland in 1955. Since 1979, and despite never winning an election in Scotland in all of that time, Conservative or Conservative-led Westminster Governments have been in power for a total 30 years – 70 per cent of that entire period.^[38]

The fact is that the overwhelming majority of people living in Scotland today have been – and are currently – governed by Westminster Governments that do not reflect our political choices.

The democratic deficit is not, however, restricted to Scotland's lack of influence over the election of Westminster Governments. Even to the extent that Scotland can contribute to UK democracy, there are elements of the system that remain deeply and fundamentally flawed from a democratic perspective.

The House of Lords

The House of Lords, the upper house of the UK Parliament, is not elected by the people for whom it passes laws. As of May 2022, there are 764 members of the House of Lords. 650 are life peers, 89 are hereditary peers and 26 are Bishops of the Church of England.^[39] Just under 29 per cent of its members are women.^[40] The House of Lords is one of the largest legislative bodies in the world and an outlier in terms of size, hereditary element and unelected composition.^[41] And as has been observed, "there are still no enforceable constraints on how many peers a Prime Minister can appoint to the second chamber of the UK legislature".^[42]

The undemocratic nature of the House of Lords is a serious matter. Unelected Lords can and do currently act as UK Government Ministers. The House of Lords also has an important role in the UK's legislative process. Nearly every type of legislation passed or considered by the UK Parliament has to be approved by the House of Lords.^[43] Lords can introduce amendments to Bills and vote to approve secondary legislation. The fact that in recent years the House of Lords has appeared – on some issues – to be more progressive than the Commons does not justify the lack of any democratic basis to it.

The unelected House of Lords can vote to change the law in ways that limit and reduce the powers of the elected Scottish Parliament, including through Bills that have been refused consent by the Scottish Parliament under the Sewel Convention.^[44] In the view of the Scottish Government, it cannot be right to have an entirely unelected chamber able to overrule and override the decisions of the democratically elected Scottish Parliament.

The UK electoral system

The voting system used to elect the House of Commons compounds the democratic deficit for Scotland.

One of the features of first-past-the-post in a multi-party system is that it generally produces disproportionate results, with national vote share not matched by seats won.^[45] This frequently results in single-party governments with large majorities in the House of Commons, won on the basis of a minority of votes.^[46]

This has significant implications for Scotland. As Figure 1 shows, in the 2015 UK general election the then UK Government won 36.8 per cent of the vote across the UK (15 per cent in Scotland) and on that basis had a majority of 12 in the House of Commons, allowing it to hold the referendum on EU membership.^[47] In the 2019 election, the current government won 43.6 per cent of the vote across the UK, which resulted in a majority of 80^[48] – on that basis it claimed an overwhelming mandate to agree the EU-UK Withdrawal Agreement (see Figure 1).^[49]

Source: House of Commons Library Briefing – General Election 2019: Turning votes into seats (parliament.uk)

In 2017 and 2019 Westminster debates on proportional representation, triggered by public petitions reaching the 100,000 signatory threshold, a range of voices called for a move away from first-past-the-post in order to address the democratic deficit and deliver a "voting system that is fair, representative and allows a wide range of views to be heard and represented in Parliament."^[50]

The Scottish electoral system

In contrast, elections to the Scottish Parliament are by proportional representation. There is also a wider electoral franchise, including a minimum voting age of 16 and the right to vote for all people with a legal right to live in Scotland.^[51] As Figure 2 indicates, this system produces results in the Scottish Parliament that much more closely reflect the votes cast in Scottish Parliament elections.^{[52], [53]}

Source: Electoral Management Board for Scotland – votes and seats by party for Scottish Parliament Election 2021

While political debate and choices are just as keenly contested in Scotland as elsewhere, the way the Parliament is set up has meant that over successive sessions different forms of government have worked with other parties and stakeholders to deliver policy as well as exploring new forms of participative democracy such as citizens assemblies. Since devolution there has been majority and minority government, formal coalitions and currently a government based on a cooperation agreement between two parties.^[54] MSPs from seven political parties, plus independent candidates, have been elected to Scottish Parliaments since 1999,^[55] and MSPs from four different political parties have held ministerial office since devolution.

UK electoral law

Electoral law is generally a reserved matter, except where it relates to Scottish Parliamentary elections and local government elections, but there is nothing in the UK's constitutional arrangements that protects or guarantees the fundamental features of our democracy, including devolution. Under UK parliamentary sovereignty, the laws that govern elections and parliaments can be modified or repealed if a parliamentary majority in Westminster so decides.

The passage of the recent Elections Act 2022, for example, demonstrates that legislation described as "an unacceptable risk to the functioning of our democracy"^[56] can be passed by any party with a Westminster parliamentary majority. This legislation will require voters to show an approved form of photographic ID before being able to vote in UK (not devolved) elections. This risks disenfranchising voters, despite there being no evidence of significant electoral fraud to justify this measure.^[57] The Elections Act 2022 also gives the Westminster Government the power to issue a strategy and policy statement to the independent Electoral Commission, a move that has given rise to concerns about its operational independence. This has been described as a proposal that "should concern anyone with an interest in the proper functioning of a democracy".^[58]

The introduction and repeal of fixed-term parliaments legislation in the UK Parliament also demonstrates the vulnerability of constitutional laws in the United Kingdom. Previously, the Westminster Parliament was dissolved by Her Majesty The Queen on the advice of the Prime Minister, or when five years since the last general election had passed.^[59] This meant in practice that the timing of a general election was a matter for the Westminster Government of the day. The Fixed-term Parliaments Act 2011 transferred the ability to call an early general election to the House of Commons. The Act provided that early general elections could only be called where two-thirds of the House of Commons voted in that way, or where a vote of no confidence was passed with no alternative government confirmed.

In 2019, the UK Government failed three times to secure a vote for an early general election, before resorting to the passage of legislation, the Early Parliamentary General Election Act 2019, which could be passed by a simple majority.^[60] Following the 2019 general election, the Westminster Government introduced, and the UK Parliament passed, legislation to return to the system which gave the Prime Minister the power to determine when general elections were held.^[61]

This demonstrates that fundamental features of the UK's democracy – how often general elections are to be held, and who can decide when to hold one – can always be decided on the basis of simple, temporary majorities in the Westminster Parliament. This is possible despite the Fixed-term Parliaments Act, when it was passed, being described as "a permanent constitutional reform".^[62]

Any of the laws that enshrine and protect our democracy – to do with the conduct or calling of elections, to do with the electoral system or the electoral franchise – can be altered or repealed at any point by a Westminster Government with a simple majority in the Commons, even if the party or parties forming the government did not secure a majority of the votes in the electorate as a whole.

Democracy and the Scottish Parliament – strengthening protections

Democracy in Scotland is designed to be different. As well as a proportional voting system that does not typically result in a majority for any party, changes to fundamental aspects of electoral law in the Scottish Parliament – including the franchise (those entitled to vote), the electoral system, the number of constituencies, regions or electoral areas by which MSPs are elected, as well as the number of members to be returned for each constituency, region or electoral area – require a two-thirds super-majority of MSPs to vote for them.^[63] This reflects the principle that changing key rules of our democracy should require a process that is deliberative and based on consensus, and not subject to the simple political advantage of the government of the day.

So long as the Parliamentary sovereignty version of the United Kingdom prevails, Scotland's democratic institutions and processes remain vulnerable.

In a nutshell

The uncodified constitution of the UK contains many features that are significantly flawed.

These include:

• the limited ability of voters in the smaller nations of the UK to influence the results of UK Parliament elections, frequently resulting in them being governed by Westminster Governments they did not vote for
• the electoral system used for the UK Parliament, that produces disproportionate results
• the reforms to electoral law introduced by the current UK Government, which will make elections even less fair and
• the inability under the UK constitution to entrench or protect the fundamental features of democracy – including devolution – from being altered on the whim of the Westminster Government of the day