Finding middle-ground on constitutional matters in Scotland

However, change is in the air. The Supreme Court’s recent judgment, preventing the Scottish Parliament from legislating for an independence referendum, has delivered a shock to the system, forcing the pro-independence camp to reconsider its strategy. The prospect of both a generational shift in SNP leadership and the election of a reform-minded Labour government means that the ground is moving in significant ways.

Into this mix has emerged an old idea. The “settled will” was John Smith’s famous, and fair, description of a Scottish Parliament three decades ago. A devolved parliament was the choice of a clear and consistent majority of the people of Scotland – something confirmed (but not created) by the referendum of 1997. With this precedent in mind, many in the SNP now see building clear and consistent majority support for independence as an essential part of any future strategy.

The settled will, however, does not just set a bar for the pro-independence campaign. It also tells us something important about the current state of the Union. Independence is not yet, and the Union as currently constituted is no longer, the settled will of the people of Scotland. That double-edge should serve as a challenge to us all.

Given where we find ourselves, what past wisdom can we draw on?

In 1970, Professor Neil MacCormick, one of the great thinkers of Scottish nationalism, set out a pathway for Scotland to become independent which bears repeating today.[1]

He argued for the creation of a devolved Scottish parliament, which would have no ceiling on what it could become. Over time, this parliament would take on additional powers as needed, and build institutional capacity, including Treasury and social security functions. Each step forward would be followed by a pause to reflect and review, including an assessment of whether a new step was needed. Eventually, we would find a point of balance between independence of action and ongoing partnership with our nearest neighbours, a point which might mean substantial devolution, or independence as we understand it in today’s interdependent world.

In so many ways, Professor MacCormick’s proposal reflects our actual experience. Our Parliament has grown in stages. While still devolved, it has become significantly more independent in terms of both powers and institutional capacity, including tax and welfare.

However, the mechanisms for reviewing and extending the parliament’s powers have been ad hoc and even haphazard – extensions coming in response to political events, such as the higher than expected Yes vote in 2014, rather than policy needs – and there is a very firm ceiling on what the parliament can become. It is these two missing elements in the MacCormick blueprint that most interest me.

If there is to be a new approach, how might it be delivered?

Our current parliament was brought to birth, in large part, thanks to the contribution of a cross-party, non-party, civic forum, the Scottish Constitutional Convention. While today’s political realities are certainly different, for me, the basic principle remains the same: we need to talk together if we ever hope to walk together.

How might we create the space for a serious constitutional conversation? Right now, on these isles, there is an ideal model, the Welsh Government’s Independent Commission on the Constitution. Led by two well-respected and undoubtedly independent figures, the Welsh Commission has brought together civic representatives, academics and politicians. It is undertaking extensive and impressive engagement with the people of Wales as it explores the constitutional options for that nation, from enhanced devolution all the way to independence. And this is key – there is no ceiling. There is parity of esteem between the options presented by those who are pro-UK and those who are pro-independence.

In Scotland we certainly have the wherewithal to do something similar. Indeed, it would be a fitting way to mark the fast-approaching 25^th anniversary of devolution, allowing us to look back, reflect, and consider whether our country does desire more.

While there is currently no obvious political appetite for such an initiative, new possibilities could emerge with the selection of a new SNP leader and, potentially, the UK-wide election of a new Labour PM.

An incoming Labour government’s promise of significant constitutional reform, based on the proposals set out by the Gordon Brown led Commission on the UK’s future, presents one such opportunity. At the heart of Labour’s plans is an overhaul of the Sewel Convention to give the Scottish Parliament new, legally binding rights. For example, under the proposals, Holyrood’s formal legislative consent would be required for Westminster to pass laws in devolved areas or alter the devolution settlement itself.

As early as 2025, Keir Starmer could be standing up in the House of Commons to announce a constitutional reform bill, and Holyrood would, in turn, be asked to consent to its provisions, insofar as they touched on devolution.  

A new, independent, civic-led constitutional convention, drawing both on the Welsh model and on our own pre-devolution experience, would be an ideal vehicle to discover the will of the people and advise the Scottish Parliament on the question of consent – that is, whether Holyrood should say yes, no, or, indeed, ‘yes, if . . .’ or ‘no, unless . . .’ to Labour’s reforms.

Labour’s plans for change would be the starting point but with no option ruled out and, thus, no ceiling. It would be a mechanism designed to reflect on the journey to date and, from this, to recommend preferred next steps. It would lead to a vote in the Scottish Parliament, a vote which, if we are to take Labour at their word, would have real meaning.

If there is a settled will in Scotland today, this would be a very good way of discovering it. It could, and in my view probably would, include more powers for the parliament and an agreed path to an independence referendum.

Might this break the deadlock? In many respects, that is up to us. If there is a Labour government next year, there is a good chance such a legislative consent process will happen. On the basis that mighty oaks do grow from the tiniest of acorns, a simple procedure that is already part of how we do devolution might just offer us the beginnings of a mutually acceptable route forward.

If consent to Labour reform is a path we might be walking, is it not incumbent on us to choose to walk it well?

[1] See Neil MacCormick, “Independence and Constitutional Change” in Neil MacCormick, ed., The Scottish debate : essays on Scottish nationalism (London: Oxford University Press, 1970).