That we are currently engaged in a debate that will lead, next September, to a referendum on Scottish independence is wholly accidental: an anomalous quirk of electoral arithmetic, as unintended by the electorate as it was unforeseen by the parties who contested the Scottish Parliament general election on 5^th May 2011. 

On one level, of course, this claim sounds absurd. No one who voted for the Scottish National Party that day could seriously claim to have been ignorant of the fact that a referendum pledge stood front and centre of the party’s election manifesto. What is more, with that victory the SNP was able to secure not only a second successive term in government, but with it an unprecedented single party majority in a chamber designed to prevent that very outcome (a single party majority generally, but an SNP majority more specifically). Seen in this light one might say that, addressing his party conference in the immediate aftermath of the election, the First Minister had every right to talk triumphantly of the “greatest ever mandate of the devolution era”:  a clear, overwhelming and historic mandate to put the continuation of the Union to the Scottish people. However, a closer analysis of that result paints a far more sophisticated picture. According to the respected (and seemingly ubiquitous) psephologist, Professor John Curtice, the 2011 election result was precipitated by the perceived competence of the First Minister and of the SNP as a party of government since forming a minority administration in 2007, coupled with a corresponding collapse in the perceived competence of both the Labour Party and its leadership. By April/May that year, the SNP’s lead over Labour stood at an incredible 30%, with Alex Salmond’s personal rating a whopping 35% better off than that of, by then a rather beleaguered, Iain Gray. Interestingly though, and this is the point, this surge in support for the SNP as a party of devolved government was nowhere reflected in any corresponding desire for radical constitutional change, with support for devolution remaining steady (at around 60%), and support for independence dropping (to a low of 23%) in the same period. In other words, in 2011 there was no constitutional problem to which the election of the SNP – and the independence referendum that followed – was the answer. Rather, it was a perfect storm, created by the electorate’s perceptions of (in)credibility and (in)competence to govern within the framework of devolution, which swept the SNP to a majority that – even in the days immediately preceding the election – they had never thought possible (never mind likely).

That the SNP won the majority required to see a referendum bill through the legislative process can be seen then to have been coincidental to voters’ intentions: an accidental but irreversible mandate, and therein lies the rub. With no obvious constitutional problem to solve – indeed, it would seem that Scots were largely content with the constitutional status quo - both the YES and the NO camps have struggled to pin down any compelling constitutional answer to their preferred referendum outcome. Here the contrast with the existing devolution settlement (Calman notwithstanding) is instructive, for this was a genuinely constitutional solution to a constitutional grievance that was widely held and deeply felt.

We say “Yes!”, and we are the Scottish people: the road to devolution

Scotland’s constitutional position throughout the 1980s and early 1990s was somewhat precarious. The 1987 general election had brought about the so-called ‘doomsday’ scenario whereby Conservative victory across the United Kingdom stood in stark contrast to the party’s showing in Scotland. Nationwide, the Conservative Party had won the election convincingly, with 42.2% of the share of votes giving them 376 seats in the Commons, and a majority in that House of 101. In Scotland, however, the picture was quite different. There, the Conservatives had won just 24% of the share of votes, and were down 11 seats on their last outing in 1983, winning just 10 of 72 available Scottish seats. Labour, with 42.4% of the Scottish vote and 50 Scottish seats (a majority of 14) could, with some legitimacy, claim to be the chosen party of government in Scotland, yet the Scottish Office, its minister and the policies it pursued would be Conservative, whilst the Conservative government at Westminster, with its majority of 101, did not need those 72 Scottish votes in order to pursue its legislative agenda. If, then, these results reflected a broad trend in Scottish politics - the rejection of Thatcherism - it was a trend which barely registered at the level of the constitution. A nation which had a large public sector on the one hand, and which needed state intervention to maintain the competitiveness of its heavy industries on the other, found itself threatened by a government which sought the contraction of the public sector, which refused to prop up struggling industries, and which – by virtue of its large majority of seats in the House of Commons – had the absolute power to legislate contrary to Scotland’s specific interests and wishes, notwithstanding the Conservative minority in that country.

The Scottish Constitutional Convention (SCC), launched in 1989 and encompassing the Labour Party, the Liberal Democrats, the Green Party, trade unions, local authorities, churches, various charities and a number of others across a broad range of civic bodies, emerged as a direct and extra-parliamentary response to this constitutional conundrum. As the institutions of Scottish civil society wilted under the weight of Thatcherism – institutions, it must be said, such as trade unions, universities, local government, which were of particular value to a nation without a (representative) national government and a (representative) national parliament – Scots increasingly became unwilling to suspend their disbelief and to support that fundamental myth that Parliament may make or unmake any law whatever. Rather, as Michael Keating has said, legislation came to be seen as an oppressive tool of the government over the people: “an abuse of parliamentary sovereignty and therefore a violation of the unwritten norms of the constitution” (Keating 2001, 21). Nowhere was this resentment more clearly expressed than in the immediate and fierce reaction to the hated Poll Tax. Reacting to this, the SCC made an explicit attempt to assert a new fiction: a claim for the sovereignty of the Scottish people, and not of (the Westminster) Parliament, building on the proposals of that most remarkable document, Scotland’s Claim of Right 1988.   

Launched in July 1988, the Claim of Right made the case for a new constitutional settlement in both negative and positive terms. In the negative sense, it “described a situation in which [the constitutional status quo was] no longer being honoured; in which the wishes of the massive majority of the Scottish electorate are being disregarded.” In the positive sense, the Claim reaffirmed Scotland’s right to self-determination: the right “to articulate its own demands and grievances, rather than have them articulated for it by a Government utterly unrepresentative of the Scots.” In that respect it concluded with the call for a Convention to draw up the framework for a Scottish Assembly, and to mobilize Scottish public opinion behind that scheme. Duly convened, the SCC opened proceedings by emphasising this re-discovered vox Scoti: the convention chair, Canon Kenyon Wright, in a moment of great rhetorical flourish, telling the assembled body, and more pointedly the watching public, that, should the Conservative government say to the Conventions proposals, “No, and we are the state,” the response should be emphatic: “Well,” he said, “we say Yes, and we are the Scottish people.” 

In a flurry of activity, in particular between 1989 and the general election of 1992, the Convention set to work drawing up the blueprint for a devolved Scottish assembly, operating within the framework of a reconstituted United Kingdom. In spite of the various interests (not to mention egos) present, the group was able to achieve substantial consensus in the face of disagreement about matters of high constitutional principle: on the policy areas which should be devolved; on the tax raising powers which the parliament should enjoy (powers to implement a small increase in income tax (3p in the £1; no power to control corporation tax); on the parliament’s relationship with Westminster, with the European Union, and with the European Convention on Human Rights; on gender equality; on questions of openness and transparency; on the number of seats in the chamber; and, on the issue where there was most disagreement to be overcome, on the electoral system to be used to elect MSPs. Indeed, where the lines of (potential) disagreement were most starkly drawn, it was, as Bernard Crick and David Millar have said, the Convention’s very inclusiveness that brought proceeding back from the brink, by refocusing clear party divisions on the broader, bigger and more immediate constitutional questions: the chronic failure of the Westminster model adequately to represent Scottish interests (Crick & Millar, 1997). The point for present purposes is this: that this question being clear, the answer itself could easily emerge with a surrounding consensus - not only that legislative and executive power should be devolved to Scotland, but that the devolved institutions should work in a manner (open, inclusive, consensual) that was more like the Convention itself, and less like the politics associated (rightly or wrongly) with Westminster.

Back to the future: what we can learn from the devolution movement

At present, by contrast, with no obvious and prior constitutional grievance to answer, at least not one that is broadly felt, the independence debate has become focused not on constitutional design and principles but instead on (at times very specific) issues: on Trident and its base, on pensions and on welfare, on immigration and cross border controls, on security, on fiscal and monetary policy, on inward investment and even on the costs of stamps and mobile phone bills. Of course, these issues are important, and it is no part of my argument to downplay their importance. However, it seems to me that to home in on these issues to the near exclusion of a broader debate about the shape of Scotland’s constitutional future - within or outwith the Union - is to put the cart before the horse: for a debate about the constitution is a debate about the sort of country that Scotland wants to be, about the institutions and powers needed to take us there, and about the ways and means by which those powers can be exercised and controlled and those institutions held to account. All of the very specific issues that have been debated thus far (and more still) spring from both the answers that we give, but also the ways in which we answer, those prior questions – and it is this latter point, the way in which we answer those questions, that concerns me here. Because this is an accidental referendum, because it was preceded by no rising Nationalist or pro-independence tide, because the constitutional problem to be solved is not obviously apparent, it has been all too easy – on both the YES and the NO sides – to promise (NO) or to concede (YES) too much of their constitutional vision (to the extent that such a vision exists), without first giving sufficient thought to the underlying questions of (constitutional) design and (founding) principles. With regard to the SNP’s position, independence begins to look somewhat watered down – a sort of independence-lite – when read in light of, inter alia, possible defence agreements over the continuation of Faslane and other UK military installations, of currency (and what this might mean for fiscal) union within the sterling zone, or of a continued subjection to monarchy. At the same time we are told that an independent Scotland will have a written constitution, that that constitution will protect socio-economic as well as political and cultural rights, and that those rights (and much else besides) will be enforced by a Supreme Court for Scotland. In other words, many of the big constitutional questions – powers of taxation, the form of government, the role of the judiciary, the protection of rights, the sorts of rights protected, and more still – have either been conceded (e.g. monetary policy, monarchy) or taken for granted (e.g. strong judicial protection of a wide range of rights), leaving precious little space for a radical debate on Scotland’s constitutional future. The danger in taking this approach is that – in striving to make independence appear to be less of a radical leap and more of a next, easy and logical step – independence itself comes, rather paradoxically, to be equated with a degree of dependence, such that one might justifiably ask the question, ‘well then, what is the point?’

Yet there are problems here too for those who believe that we are better together. If the Calman reforms marked something of a reaction to the SNP winning power as a minority government in 2007, the reaction from Labour, the Liberal Democrats and the Conservative Party to the 2011 election, and to the independence referendum that will now follow, has been to promise yet more devolution of power Scotland. The Scottish Liberal Democrat leader, Willie Rennie, told the Lib Dem Conference in 2012 that Scotland must “[move] forwards to [a] future with more powers, more decisions, more responsibility at home,” and the party’s Home Rule Commission reported shortly after to make the case for a federal United Kingdom, in which defence, foreign affairs and welfare would remain at the centre, with much else (including income tax) devolved. The Scottish Labour Party have set up a Devolution Commission that will examine (somewhat vaguely) how to “give the Scottish Parliament powers for a purpose”, though with no compelling answer offered to that prior and fundamental question: what is devolution for? Which powers, what purposes, remain mostly ill defined. Ironically, given their opposition to devolution in the 1990s, it has arguably been the Scottish Conservatives (or at least its leadership), that has given the most thought to those prior questions. In pitching a case for the further transfer of fiscal powers, such as would, in their view (and in line with conservative politics more broadly), encourage greater fiscal responsibility and that would allow, for example, for corporation tax to be lowered in order to attract inward investment, the Conservative Party, to their credit, have given real thought to the sort of Scotland that they would like to see and to the powers needed to take us there.

The dangers here for the NO campaign, in my view, are two-fold. First, that it is not at all clear what the devolution settlement might look like in the event of a NO vote on September 18^th 2014. At the minute we have a number of discrete commissions who have looked at, or who are looking at, that question. Whilst the starting assumption seems to be that more powers must be transferred, there is no consensus around what powers those might be and to which ends. More than this, it is not yet clear that the conclusions (to be) reached by these commissions will find the support of their Westminster counterparts, in whose hands the further transfer of powers (if that is to be the next logical step) lie. On the one hand, this is all to be expected: let us deal first with the question at hand, they might say, ‘independence: to be or not to be’, before we tackle the separate and distinct question of devolution within a continuing union. On the other hand, however, it presents an opportunity to the YES campaign to straddle two horses at once: to convince the electorate that a YES vote is the only vote that will guarantee more powers to Scotland, be that in the event of a victory (powers through independence) or of a narrow defeat (and the pressure for something like devolution max that would surely follow).

The second danger (and one which follows albeit indirectly from the first), is that  in the rush to devolve more powers still, so as to answer a constitutional question that in truth has yet to be asked, we lose sight of what was truly radical about the devolution settlement: not (only) the devolution of powers, but the promise of a ‘new politics’ to come with it - a promise inspired by the broad, inclusive and consensual nature of the convention, but a promise that remains largely unfulfilled. Where this new politics promised a sharing of power between the executive, the legislature and the people of Scotland, the reality has been quite different. First, an electoral system designed to prevent single party majority government has nonetheless produced just that, meaning that the SNP now forms the executive, holds a majority of seats in the chamber, and controls the committees by which (mostly) its own bills are scrutinised. Indeed, and as Paul Cairney’s excellent work has shown, executive control of the chamber and committees has thus far proven to be the rule rather than the exception at Holyrood, with the majority (Lib-Lab) coalition governments that were formed in the aftermath of the 1999 and 2003 elections enjoying the all the trappings of majority government: control of the policy making process, control of the chamber, majorities in committee, and a strong degree of loyalty enforced by a robust whip. Only in the 2007 election, which resulted in the SNP forming a minority government, did the numerical advantage shift from the executive to parliament, yet here still the executive was the dominant force in the legislative and wider policy making process, suffering relatively few defeats in chamber whilst simultaneously looking beyond Parliament, to existing powers and relationships, in order to implement its policy objectives (Cairney 2011).

Secondly, the committees themselves have not yet grasped the nettle and set themselves apart from the executive dominated chamber, neither as independent and inquisitive scrutineers of the executive, nor as agenda setting agents within the legislative and policy making process. This failure, at least to date, seems to stem from at least two root causes: on the one hand, institutional deficiencies caused by inadequate time and resources; on the other, deficiencies of personality. Committee members, it has been said in a scathing assessment by Lord Hope, “lack the independence of mind and opportunity for detachment and genuine self-criticism that is essential to effective scrutiny” (Lord Hope 2004). Thirdly, the channels through which the people of Scotland were to be enabled in order to exercise their share in political power, not only through engagement with the committees, but through extensive and creative consultation processes, and through the work of the Scottish Civic Forum, have slowly been closed as the number and complexity of deliberative consultation events declines and the level and source of funding for, not to mention the level of respect shown to, the Civic Forum from both the executive and from parliament diminishes (for more on this important challenge to the parliament’s founding principles, see the study by Davidson et al. 2011).

Some final remarks

It is easy now to scoff at the naivety of the proponents of new politics, but as the debate proceeds towards September 18^th 2014 we will do well to remember this: that this new politics was always more than an aspiration or ideal – it was the very real experience of the SCC, and indeed arguably the definitive and productive dynamic behind devolution. Rather than rush to devolve more powers to Scotland – the predominant constitutional reflex to this quite accidental referendum – it would, in my view, be better still to focus not on powers, but on principles: on reducing the executive’s domination of the legislative process, on strengthening the resources and the teeth of the committees both as scrutineers and as agenda setters, on widening participation in deliberative events and in facilitating a genuine two-way dialogue between civic society and our representative institutions through a properly resourced and respected civic forum. This return to principles must not start with discrete commissions divided on party lines, but, learning from the success of the SCC, with a commitment from all parties – and from civic society more broadly – to engage once more in a genuinely inclusive, participatory and consensual constitutional discussion. This is the virtue that springs from our fortune, from our accidental referendum: the opportunity to reflect upon and renew the principles that, not so long ago, made devolution a truly radical achievement.            

References

Paul Cairney, ‘Coalition and Minority Government in Scotland: Lessons for the United Kingdom?’ (2011) 82(2) The Political Quarterly 261

Bernard Crick and David Millar, To Make the Parliament of Scotland a Model for Democracy (1997)

Stewart Davidson, Alistair Stark and Gordon Heggie, ‘Best Laid Plans…The Institutionalisation of Public Deliberation in Scotland’ (2011) 82(3) The Political Quarterly 379

Lord Hope, ‘What a second chamber can do for legislative scrutiny’ (2004) 25 Statute Law Review 8

Michael Keating, ‘Managing the Multinational State: Constitutional Settlement in the United Kingdom’, in Trevor C. Salmon and Michael Keating (eds.), The Dynamics of Decentralization: Canadian Federalism and British Devolution (2001), 21.

Christopher McCorkindale is a Lecturer in Law at the University of Strathclyde