I’m grateful for the coverage The National gave to the the Independence Forum Scotland National Convention last weekend. It was wonderful to see the building activism in the room and delegates certainly kept me on my toes during the Energy World Cafe. The desire to see Scotland bring more of its energy resources into public hands is strong and I was glad to lay out how it could be done despite the limited powers of devolution.

Another question came out of the day about navigating similar limits in another area. One of Common Weal’s calls for the strengthening of our democracy is the creation of a second chamber in the Scottish Parliament that could take some of the weight off of the scrutiny committees, could make sure our laws are fit for purpose and – perhaps most crucially – could oversee the Parliamentarians themselves and hold them to account if and when they fall short of the standards expected of them. In this way it would act very much like the House of Lords down south or the elected or appointed upper chambers in many other countries (Scotland is one of the very few national-scale polities that don’t have an upper chamber – even most of the US states have one) but we want to improve on the highly corruptible model of appointing Lords for life based on their loyalty or political donations (still waiting on Labour delivering on the manifesto promise they made over a century ago to fix that one down south) or even the counter productive model of electing party-loyal people to that chamber (and thus replicating the US model where there is zero accountability when one party controls both houses and zero progress when they don’t). Instead, we want a Citizens’ Assembly where all registered voters in Scotland are entered into a lottery similar to jury duty and are called to serve in the Parliament. Appointments would be by random selection initially but the long list would be adjusted to ensure that the actual Assembly is balanced demographically across age, income, geographic representation and other factors (this model was used to great success in the 2021 Scottish Climate Assembly). Appointments would be generously paid (on par with MSP salaries) and would last a fixed time – we suggest a one year appointment with a third or a half of the chamber rotating out periodically – and there would be the same protections on returning to your job as there are for jury duty or paternal leave. The comparison to juries is a strong one. If we trust our peers to determine if it has been proven or not proven that someone has broken the law, then we are more than capable of determining whether or not the laws themselves are broken.

Sounds great, but the question we were asked at the Convention was whether or not Scotland has the power to set up such a Chamber.

If we were independence, it would be a relatively trivial matter to write the structure of the Chamber into our constitution but until then, the constitutional document we have to follow is the Scotland Act. Yes, the UK does have a constitution – it’s just not written down in one place and unlike the constitution of most nations, Westminster has sovereignty over it rather than being subordinate to it and so can change it whenever it likes.

As the Scotland Act doesn’t mention an Upper Chamber in its framework and as Westminster is extremely unlikely to exercise its power to write one into the Act, how could we set one up pre-independence?

Essentially we act as if we can.

The Scottish Parliament can set up advisory bodies or Commissioners to oversee the work of Parliament and even though we couldn’t mandate that they must follow the advice of those bodies (this was ultimately the source of the failure of the Climate Assembly – the Government decided they didn’t like the advice they were given so largely ignored it), Parliament and Government could collectively agree to follow those instructions – there’s nothing in the Scotland Act that actively prevents them from doing this just as nothing prevents parties whipping their members into voting along certain lines despite that not being an “official” part of our democracy.

Such an “unofficial” upper chamber wouldn’t be nearly as powerful as a constitutionally mandated one but that’s not to say that it would be powerless. Yes, something created by an Act of Parliament alone could be scrapped by one (a constitutional amendment would require a referendum). Yes, the Government could simply stop listening to its advice. This would place it on par with the other Commissioner bodies that exist around the Scottish Parliament. Yes, Westminster could overrule the Scottish Parliament and write a specific prohibition into the Scotland Act or elsewhere. This would place it on par with any other piece of legislation the Scottish Parliament has ever passed. If either of these barriers are enough to stop us, we might as well just give up on devolution entirely.

Scenes playing out across the world right now only serve to highlight how precious and vulnerable the very concept of democracy is and how no single person or even multi-person office can be trusted with more power than it needs. Scotland’s highly centralised form of government needs to be spread out a lot more locally but we also need more scrutiny and accountability at all levels from the top down. The best people to do that are All of Us appointed not to a House of Lords, but to a House of Citizens.