Introduction

Debates leading up to the creation of the Scottish parliament demonstrated the huge potential to galvanise thinking about political change and the promotion of gender equality.   However, women's voices and issues of gender equality and gender justice have been curiously absent from the current debates around constitutional futures in Scotland.  This relative absence contrasts sharply with their prominence in the run up to devolution in the 1990s.  This essay will reflect upon the opportunities and challenges posed for women and gender equality by the constitutional debates in the run up to the 2014 independence referendum.

Women, devolution and constitutional change

Processes of political change and institutional restructuring open up ‘windows’ or ‘moments’ of opportunity for reformers — including those promoting women’s rights and gender equality.  Constitutional change offers those traditionally marginalized a chance to stake their claims in re-envisaging and redrawing political communities. Constitutions, particularly written ones, are characterized by three key aspects: first, they provide a unique space for articulating a state’s narrative of inclusion and national identity; second, they set out an institutional power-map for government such as the form of political representation, and the legislative, executive, and electoral rules; and third through provisions such as rights, they capture an aspiration for the future — something that will enable the country to move from the constitution as a political ‘deal’ whose national narrative and institutions reflect power balances at the time, to a document which sets out broader principles and aspirations of fair treatment and equality.[1] 

All three dimensions of constitution-making projects offer possibilities for inclusion and equality or, conversely, exclusion and inequality. These opportunities were well recognized and seized upon by organised women and gender equality advocates in the run up to devolution in Scotland in the 1990s.  A coalition of activist women from trade unions, political parties, church groups, autonomous women’s groups, and wider civic society mobilised around their feminist and gender identities – sometimes across other significant social and political divisions and identity claims— in order to insert gendered claims for inclusion into the constitutional reform process.  Under the umbrella of the Scottish Women’s Coordination Group and the rallying banner of the 50/50 campaign, they lobbied for new political institutions, new principles, new provision and new practices that were more responsive to women’s concerns, more likely to tackle structural discrimination, and in which women could play a more equal role.  The goal was the creation of a fairer and better Scotland for women, men and children.[2]

The subsequent devolution settlement and institutional blueprints attest to their influence. In addition to achieving Nordic levels of women parliamentarians (37.2 per cent of MSPs in 1999), activists also succeeded in building gender equity concerns into the fabric of the new parliamentary and governmental blueprints and structures. Key features included the adoption of equal opportunities as one of the key principles of the parliament, the creation of equality policy machinery in government and an equal opportunities committee in the parliament, a commitment to equality mainstreaming (including gender equality), the adoption of ‘family friendly’ sitting hours, and the development and participation of women’s organisations in a more inclusive and consultative style of policy making. Early and progressive policy gains in tackling domestic violence compared with the rest of the UK demonstrated an apparent equality benefit to devolution,[3] and sustained efforts have been made to consider the gender equality implications of government budgets.[4] As such, the Scottish case bears many of the hallmarks of a successful example of feminist ‘constitutional activism’[5].

In the intervening period, in particular in response to peace and constitution-making projects in the global South, the importance of women’s participation in constitutional debates has been recognized and endorsed by the international community.  In particular, The United Nations Security Council Resolution 1325 (2000) notes the importance of a gender perspective in peace agreements, in particular with relation to ‘Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary’[6] Recently, the UN Human Rights Council established a new working group to examine discrimination against women in law and in practice in political and public life, with a focus on constitutions.[7] Meanwhile there have been global campaigns to address the chronic minority status of women in political life through the championing of quota mechanisms (implemented through voluntary, statutory or constitutional means). These developments have yielded results: in global terms women’s political participation is at an all-time high of 20 per cent, although still a long way from gender parity[8] .

Women and the independence referendum debates: mutual indifference?

Despite the strong links made between constitution-making processes and the promotion of women’s rights and gender equality, the current independence debate does not appear to have caught women’s imagination; neither has the prospect of independence. Polls suggest a significant and persistent gender gap of 10 points or more between men and women in terms of support for independence, with women markedly more skeptical about the merits of separation. Over time, women have tended also to comprise a greater proportion of those who are undecided. According to a recent Ipsos MORI poll, overall support for independence increased in February 2013 to 34 per cent. However this was largely as a result of a bounce in male support. Whilst 41 per cent of men reported support for independence, only 28 per cent of woman did so—highlighting a thirteen-point gap between women and men.[9] The existence of the gender gap cannot be explained by women having a weaker attachment to Scottish identity, as they are no less likely than men to consider themselves ‘Scottish, not British’.  Scottish Social Attitudes surveys in both 2011 and 2012, suggest that women,  more  than men,  need to be convinced about the practicalities: what would change? What would stay the same? In other words, women more likely to vote with their heads and men with their hearts. [10]

We suggest that while there are broad reasons why the current process has not yet galvanized civic participation, there may be particular reasons why women remain disengaged that are important to understand because they link to the ambivalent relationship of women to constitution-making practice that has relevance beyond Scotland. These include, the difficulty for women in holding onto earlier constitutional gains with respect to women’s participation and the integration of gender equality norms and concerns; the gendered nature of legalistic process arguments in terms of who is enabled and who is disabled to participate; the gendered nature of arguments over sovereignty; and the fact that there is no self-evident ‘women’s approach’ to questions of sovereignty and constitution-making with the question of ‘what women want’ remaining a complicated one conceptually.  These will be considered in turn. 

The difficulty of holding onto devolution gains – gender parity is (still) not the norm

Organised women and feminist ideas were crucial parts of the broader winning coalition that delivered devolution in the 1990s.  The norm of gender parity, for example, was prominent in the devolution debates where it served as a shorthand for aspirations of a modern, democratic and inclusive polity, and as emblematic of a progressive civic nationalism. As Tom Nairn noted at the time: ‘Nothing, but nothing, will now cause this issue to go away. It has become a small-“n” nationalist banner- an emblem of the kind of country and the style of nationalism people really want.’[11] Activists lobbied the Scottish Constitutional Convention to promote women’s equal representation, and challenged the political parties to reform their candidate selection and recruitment practices.  Campaigners suffered a set-back when the Commission of the SCC failed to agree to recommend a statutory quota, preferring instead to allow parties to regulate themselves. However, the final SCC report, setting out devolution blueprints included an Electoral Contract signed by the Scottish Labour Party and the Scottish Liberal Democrats, which committed them to field equal numbers of male and female candidates in the first elections to the Scottish parliament.[12] In the end, Scottish Labour were alone in implementing quotas and the only party to achieve gender balance in the first elections. Although, the SNP as the main electoral rival to Labour, implemented effective but informal measures which resulted in  it returning 43 per cent female MSPs in 1999.[13] However, despite the initial gains for women in the Scottish parliament, the trends in political recruitment are stalling or in decline. Gender candidate quotas (both formal or informal) have not “caught on” across the party system. For example, the SNP has not implemented any measures (formal or informal) since the first elections to the Scottish parliament in 1999. Gender equality measures remain poorly institutionalised within parties and there is little evidence to suggest that political parties have prioritised efforts to reform the norms and practices of political recruitment. [14] Furthermore, despite some policy distinctiveness from the rest of the UK, devolution has not delivered substantially different or better outcomes for women.

More generally, the principle of equality (50/50) or parity (usually understood as 40%) has not been normalized in public life, and women remain relatively excluded. Despite the differential impact of welfare systems on women and men, and the widely documented evidence that current welfare cuts have a disproportionate impact on women, the Scottish Government initially failed to appoint a single female expert to its working group on welfare reform in January 2013. The launch of the referendum campaign in the Summer of 2012 was notable for its all-male platform of speakers; and the routine organization of all –male or majority-male panels of commentators and “experts” at public and media events demonstrates the relative indifference of those in power (in media, politics and civic Scotland) to the absence of women’s voices and gender equality perspectives in debates. Outspoken critics,  such as the journalist Lesley Riddoch and the Scottish Women’s Budget Group, have provoked some efforts to redress the balance  — and progressive male allies such as political commentator Gerry Hassan have refused to participate in all-male panels  — but it is clear that women’s equal participation is not central to these processes.

Labour has traditionally had the strongest connections with organized women and gender equality advocates, through its own women’s structures and the wider labour movement as well with autonomous women’s organisations. Whilst the SNP has a long track record of prominent women, as a party it is male dominated[15]; it also has less developed links with women’s organisations and community groups. Activists have had less space to develop feminist agendas within the party, and have been less successful than their counterparts in Scottish Labour and the central British Labour party at linking party reforms with the issue of women’s political under representation, or using gender voting gaps as leverage to prioritise classic ‘women’s issues’ or promote gender analysis. The party’s projection of a modern, inclusive and tolerant nationalism has not provided – to date – the conditions for the growth of a feminist-accented nationalism, in contrast with other comparator parties such as Plaid Cymru and Parti Québécois.[16]

Whilst the newly formed grassroots organization, Women for Independence, seeks to make those connections and promote a yes vote, the wider arguments about whether and why independence might be “good for women” have only just begun to be rehearsed.

The legalism of the process debate  - and its gendered implications

The second difficulty concerns the nature of the current process.  The referendum emerged as a result of the SNP victory in the elections of June 2011.  However the debate that ensued for the next year and half concerned whether and how a referendum could be legally achieved and whether the Scottish Parliament had power to hold a referendum, or whether it was ‘ultra vires’ the Scotland Act 1998.  This was a debate, which pitted opposing legal interpretations against each other.  It has been resolved by the St Andrew’s Agreement made between the Scottish and UK governments that the UK would ‘devolve’ power to hold a referendum to the Scottish government to hold a referendum (through an order made under Section 30 of the Scotland Act 1998).  The legalism of the debate over the powers of the Scottish Parliament can be understood as one that also involved substantive issues.  In particular, process arguments over the scope of the Scottish government’s power disguised underlying substantive questions over what the democratic and constitutional frame for asking the question about Scotland’s future should be: one located in Scotland and controlled by the devolved (SNP) government, or a matter for the UK as a whole under the control of the UK government.  Conceptually, the process issues revolved around a fundamental question of the extent to which the rules of the default UK constitution were sufficient or appropriate to constraining attempts to change that constitution. 

However, the legalism of this first year of discussion was disempowering of wider questions relating to the ambition of independence. It is well noted that legalism carries a price in terms of public participation.  This price has been clear in the current Scottish context, postponing and even neutering deeper questions as to what the process was intended to achieve.  The ‘resolution’ of the process in governmental agreement to ask a straightforward binary question relating to independence, means that its initial pathway continues to shape the options available to discuss.  The outcome of a ‘pact’ between two governments has served to narrow the question to an either/or of ‘Scottish independence’ versus ‘continued union to Britain’, at the expense of considering whether some sort of more nuanced ‘in-between’ (so-called devo max, devo plus or devo more) option could have been fashioned.  It has done so without requiring any civic process as to what is to be asked.  While the fine text of the question was not fully resolved (subsequently, the Scottish government has agreed to the recommendations of the Electoral Commission), the critical issue of a binary yes/no question on independence is now settled.  The ‘single question’ approach in essence frames the issue of change around a change in sovereignty, rather than the question of what powers and what type of Scotland might be on offer..

This process stands in contrast to the more inclusive processes in the run up to devolution, which were characterised by more than a decade of constitutional activism by civil society (in the aftermath of the failed 1979 referendum). Detailed blueprints were drawn up and debated through civil society forums such as the cross party/ non-party Scottish Constitutional Convention, and its working groups, about the shape and form of devolution. Decisions to hold a pre-legislative referendum and its wording (including the-then controversial second question about tax varying powers) were flagged up as part of a manifesto commitment to devolution by the Labour Party in the 1997 General Election. The government’s 1997 White Paper Scotland’s Parliament, was based, in large part, on the framework devised by the SCC and its constituent working over long years of deliberation and wider public consultation.

The path taken in the current constitutional debates also makes the impact and content of the independence referendum unclear, again constraining the capacity for full public engagement.  Paradoxically, a vote is needed to achieve negotiations, but the actual shape of any resultant independence will rest on the post-election negotiations. Thus the eventual contours of independence remain uncertain.  For women, the devil may well be in the post-referendum detail.  This process contributes to a dis-empowerment of civic participation as it suggests that the substantive questions as to the shape and content of independence will only be answered post-referendum. In other words, it tends to preclude full attention on constitutional futures — and the envisioning of new social, economic and politics models — issues in which embodied citizens — women and men — and their diverse needs and interests come to the fore.

While these problems apply to civil society as a whole, given women’s relative exclusion from the spheres of party politics and legal debates they have a particular gendered impact.  Whilst some pollsters[17] have explained the gender gap in attitudes to independence in terms of women being less political, more hesitant and less able to take a ‘clear view’ than their male counterparts, we would argue that a ‘wait and see’ approach is a rational response to the legalistic and narrow process and the lack of authoritative information and analysis available as to the consequences of constitutional change.

The gendered nature of deal-making

However, there is another price for women in the ‘deal-making’ pathway forged to date.  The need for an inter-governmental ‘pact’ to legalize the holding of the referendum, and the pathway of ‘vote first’, ‘negotiate second’, while perhaps unavoidable, also places executive negotiations rather than civil participation centre stage.  From a gendered point of view the Scottish political landscape is currently striking for the fact that two out of the three major party leaders are women – Johann Lamont for the Labour Party, and Ruth Davidson, for the Conservative Party; while a third woman, Nicola Sturgeon is the Deputy First Minister of the SNP government, with responsibility for promoting a ‘Yes’ vote.  Unusually, women dominate the leadership of the Scottish parliamentary political scene, a consequence, in part of the gender coup delivered by devolution. However, the emphasis on pacting between governments in London and Edinburgh marginalizes not just wider Scottish democratic participation but also the women leaders who should be at the forefront of the debate.   The Scottish Labour and Scottish Conservative leaders and their strategies stand in a difficult relationship to their political counterparts in London, which play to a different constituency. There is a danger, thus, that their views and those of their electorate are eclipsed. For example, Johann Lamont’s tactics on the referendum — a reluctance to propose devo-more alternative — can be undermined overnight by Ed Miliband or even an IPPR report on possible new tax-raising powers.[18]  Meanwhile, Nicola Sturgeon who heads up the ‘yes campaign’ for the Scottish Government arguably, also risks being side-lined in the eyes of the public and media — if not in fact — from the hard-end of the inter-governmental negotiation into a more marginal civic process, leaving her hitherto rosy political future within the party tied to the success of that campaign. In short, while women hold significant leadership positions, they may still struggle to be central to any deal-making that ensues. 

The gendered nature of sovereignty as automatic good

At a deeper level, a straight yes-no question on independence can itself be argued to be gendered.  As other contributions (see Walker) to this collection emphasise, sovereignty is increasingly a relative concept.  While the choice between independence and continued union with the rest of the UK is perhaps a stark one in terms of where ‘external’ sovereignty — that is, how the country relates to the outside world - is stark, in terms of how power is held and exercised internally, it is likely that something other than a rigid absolute and differentiated sovereignty pertains in practice.  Already, discussions on currency, defence, monarchy and British identity reveals an independence project that aims for sharing some of the normal attributes of sovereignty.  The clear-cut question, belies the fact that something other than a clear-cut choice between separation and sharing is on offer: in fact the vote most clearly affects the external consequences of sovereignty with the question of what powers and relationships with the UK will pertain in all likelihood involving creative flexibility and cooperation. Issues of particular concern to women, for example day-to-day socio-economic issues, or issues such as violence against women, or protection of part-time workers may be largely unaffected by an affirmation of Scotland’s external status as independent and sovereign, with the devil lying in detail of the re-negotiation of the relationship with the rest of the UK as takes place.  Moreover, arguably the single most critical dimension of external sovereignty for women – membership of the European Union, which has delivered substantive equality gains for women, particularly in the areas of employment legislation, also will need to be negotiated in the wake of any independence referendum.

Evidence from other processes of constitutional or nationalist struggles suggests that women are often less focused on where sovereignty formally lies and are instead more pragmatically focused on how the substance of what sovereignty will offer in terms of women’s equality. Women are rightly skeptical that claims to sovereignty as ‘big bang’ ways to ensure their rights are delivered in one fell swoop.  Nationalist causes have a long history of employing women in service of ‘national projects’ premised on the promise of equality, only to sell out women on achieving statehood, in the face of patriarchal traditional, corporate and religious interests.[19]

Political contingency and ‘standpoint’  

The question of the diversity of women’s views also, we suggest, complicates women’s commitments to either UK or Scottish sovereignty.  In the run up to devolution, a substantial majority of the Scottish population, including women, were in favour of devolution and the establishment of a Scottish parliament. Women activists were clear that devolution would deliver a better deal for women and could coalesce, as part of a the wider pro-Home Rule movement, around the relatively simple demands of devolution and women’s equal political representation.

The present context is much less straightforward: both ‘Yes Scotland’ and ‘Better Together’ campaigns have activist women involved but neither campaign seems to be making the case as to why women as women might have a reason to support either option.  Rather the key choice is being presented as abstract: a change of sovereignty, or a choice between change versus ‘no change’.  Yet just as the content of independence appears uncertain for women, so too does the content of the unionist status quo of ‘no change’.  

The actual shape of what UK or Scottish sovereignty will deliver seems peculiarly unsettled and politically contingent in the contemporary landscape.  Just as the substance of change brought about by independence is unclear, so too is the substance of the ‘no-change’ offered by the status quo.  While something as fundamental as a change of sovereignty would seem to be about a long-term national project that is in some sense transcendent of the immediate policies of current government, we live in a wider moment of crisis in which political arguments about the necessity of austerity measures enable the implementation of economic and social policies with long-lasting structural consequences for women and their families, and for gender relations.  It is indisputable, for example, that women as workers and as service users (in their traditional roles as parents and carers), rely heavily on a social democratic style welfare state. It is also the case that anti-discrimination protection, equal treatment, and part-time worker rights have been propelled primarily from Europe. The approach of the Coalition government to taxation, welfare cuts, family benefits, public sector employment and public spending, all of which have been documented to have a gendered impact against women, arguably amount to a re-working of the social contract.  The UK Women’s Budget Group calculates that women have shouldered 75 per cent of the austerity cuts to date. Taken together, the Coalition government policies remove incentives for second earners and parent workers; returning us to an outmoded model of male breadwinner-female home-maker. There is also an apparent assumption that shortfalls in crucial social services caused by deep cuts in public spending will be absorbed by families and communities; in practice, this means by women. The move towards private provision in education and healthcare, also have gender impacts and appear nearly as irreversible as nationalization of railways and utilities in the time of Thatcher.  While European law remains a key source of protection of women’s rights, particularly in the realm of employment, a move by the Coalition government, or any subsequent conservative government, to withdraw from the European Union or at least key elements of its regulatory regimes, would have an undoubted negative impact on women’s equality, a structural change of magnitude that could outlast any current government (just as the decision to enter the EEC in 1972 did). 

For women, we may therefore be in a time where questions of sovereignty must be evaluated in terms of the policy choice on offer in social democratic terms, precisely because the current choices at the UK level appear to be structural in the sense of partial dismantling and significant retrenchment of the welfare state and public sector. Rather than the transient policies of a time-limited government, such changes have been designed to be difficult to reverse. In other words, the “no change” option belies fast moving change and the unraveling of the social contract. However, such an analysis does not automatically lead to support for independence.  For the ‘change’ model obscures ongoing interdependencies and, arguably, subordinate relations between Scotland and the rest of the UK. It is far from clear what constitutional option would provide the greatest capacity to deliver a ‘women-friendly’ social and economic model - or even the maximum leverage to resist further erosion of social democracy.   In this light, the Yes Scotland’s headline in its recent mass leafleting campaign  -- “Yes: Now What’s the Question?” --  seems unlikely to make an impact on female voters’ pragmatic skepticism – given its exhortation to commit first and ask questions later is a mirror opposite of women’s quest for answers. In this context, indifference to the referendum may merely constitute a ‘lets wait and see’ approach that reflects an appreciation of the contingencies of the political climate, and the track of structural changes to come at the UK level.

Is it worth it?

A final issue for women, is whether the debate is worth the time and energy of engaging.  After all the majority support for the status quo – or, more accurately, for the devo max/more option not currently on offer – is seemingly solid. Further more the outcome is uncertain, its results requiring further negotiation in any case, and the ways in which women’s rights are likely to affected are difficult to calibrate. As such, women’s relative disengagement can be understood less as indifference, and more as a strategic choice over when and how it is useful to engage.  Those engaged in advocacy work might understandably view their time as better used in pushing for core demands, challenging  inequalities and injustices, and tackling the immediate consequences of austerity, than in engaging in the possible constitutional framework in which reforms may or may not be delivered.   In fact, engaging with the independence debate may have a price for community groups and advocacy coalitions, because however ‘neutral’ in terms of outcome, it risks alienating funders from either camp. The choice may be a difficult one as to whether to spend precious energies on engaging with an intangible and uncertain process of possible change, or to concentrate on day-to-day demands and risk losing an opportunity to shape the wider political and legal context in a structural way.

Conclusion: How could the process be engendered?

As long as debates are dominated by high politics, abstract legalism and macro-economics most people will be excluded from the process. In particular, women will be excluded because they are already under represented in public and political life. It is also the case that whilst debates are conducted at this level of abstraction, then the connection of constitutional change with issues of central concern to the practical politics of everyday life, and issues of social justice, equality and well-being is obscured. In such circumstances, women are likely to remain on the sidelines as the disengaged, the undecided and the skeptical.

Women have often sought change by trying to envision and promote the type of society they want to see.  Both in the independence debate, and indeed in discussions of what the ‘plus’, ‘max’ or ‘more’ of devolution plus might be, lurk a series of critical questions that are not being discussed as such, but which are self-evidently central to women’s lives. 

The first is, how Scotland will articulate the distinctiveness of its national project (whether devolution or independence) in terms of questions of inclusion.

The second concerns how it will institutionalize questions of equality and social justice at the level of political and legal institutions, and rights protections.

The third concerns what type of social democratic model Scotland will follow and whether equality between men and women will be seen as a core value and building block.

Finally, critical to all these questions is: what type of process of engagement will be on offer – whether to achieve increased devolution, roll out the current 2012 settlement, or fashion a constitution post-independence.  Will it be one that aims to create a space for women’s voices, and offers possibilities for engagement, influence and change?

International experience suggests two key lessons: firstly, the importance of women mobilizing to intervene at an early stage and the need to bring demands and concrete proposals to the table; and secondly, that without vigilance, active intervention and participation, visions that are expansive, inclusive and gender-sensitive can be quickly diluted or overlooked.

Christine Bell is Professor of Constitutional Law at the University of Edinburgh; Fiona MacKay is Professor of Politics at the University of Edinburgh