This blogpost originally appeared on the Constitution Unit Blog, on 24 October 2012.

The crucial question over the next two years is a superficially simple one: “What does ‘Scotland as an independent country’ mean”?

It should be a truism that voters at an election or referendum should know as much as possible what/who they are being asked to vote for.  This is essential for democratic and legitimacy reasons. Yet, so far, this doesn’t seem to be the case in the 2014 Scottish independence referendum.  It seems that qualifying Scottish voters will be asked simply to agree or disagree with a general, almost abstract, ‘in principle’ proposition, rather than to support or not support a particular constitutional ‘settlement’, as in earlier such referendums in 1975 and 1997.

What would independence mean?

The main – for most potential referendum voters, the only – ‘independence’ on offer is that of the SNP.  Some argue that this form of independence is in reality a strong variant of ‘devo-max’ (‘devo-extramax’? ‘independence-lite’?), because of all the proposed continuing links to UK institutions and policies etc..  Does this matter?

In some sense, all independence in the modern world is relative, especially in practical political, economic and military terms.  The present UK’s sovereignty, practical as well as legal, is less than pure and total, because of membership of bodies such as the EU, NATO and UN, for example.

Again, it can be argued that the SNP’s evolving version of Scottish independence is driven by the realpolitik of winning over voters to the YES camp in 2014, rather than by some theoretical or romantic ideal of independence.  It fits in with the SNP policy of gradualism, presenting post-2014 independence as simply the final, painless step in the devolution journey, completing the process begun in the late 1990s of the creation and development of a Scottish Parliament (and accompanying Government).  In this scenario, many voters may not even realise the political and constitutional significance of the referendum. 

Yet, notwithstanding any camouflaging words and policies, at some point there must be a Rubicon to be crossed when Scotland becomes, and is recognised as such, an independent state.  I’m not an international lawyer, but there are at least two relevant aspects of independence here, where Scotland’s status becomes definitively more than devolution, federalism or the like, still ultimately part of a wider independent state, ie the UK: 

• International recognition of independent statehood: it is not just a question of whether Scotland should itself belong to bodies such as the EU, UN or NATO, but whether it can be, is qualified to be, a member of such bodies;
• Legislative supremacy: the post-independence Scottish Parliament, not the Westminster Parliament, would be the repository of ultimate legislative power, whether or not limited by any ‘higher’ written constitution or by external supranational bodies like the EU. 

Pathways to independence

In theory there are various ways in which Scots can have the opportunity of giving ‘informed consent’ to independence.  Whether or not some of these are politically practical or realistic is a different question. 

While SNP gradualism implies a degree of ‘independence-by-stealth’ in winning a referendum, there would presumably also need to be some parallel narrative or ‘creation myth’ which is more heroic, resonant and visible, recognising and glorifying that crossing of the independence Rubicon.  This may require, however symbolically if not (in terms of the various relevant jurisdictions) legally, some form of ‘Treaty of Disunion’ as the constitutional bookend to the 1707 Treaty/Acts of Union.  

From the UK point of view, Scottish independence would presumably be achieved legally by an Act of the UK Parliament, whether or not accompanied by, or incorporating, any separate ‘treaties’ or other written agreements.  In Scottish domestic symbolic, as well as international law, terms, such a Treaty of Disunion would be made between ‘independent’ states, rather than between a sovereign state and one of its component parts, and it would be this, and any accompanying ‘declaration of independence’ and Constitution, which would be regarded within Scotland as the crossing of the independence Rubicon.

What role, if any, would or should the Scottish people have in any such process?  If there is no pre-referendum detailed elaboration of what ‘independence’ actually means, other than what is said by the various parties and any official umbrella YES/NO groupings, there is a democratic case for a further recourse to the people, by way of a second referendum or otherwise, once a detailed independence deal is finally negotiated.  

If that is not feasible, then there is an argument for some form of ‘constitutional convention’ where the people’s representatives can discuss and ‘decide’ on the terms of Scottish independence.  This would be in tune both with recent Scottish constitutional practice, and with more general modern trends towards participative democracy.  This could be held after a YES vote, and any such ‘settlement’ can then form the basis of whatever constitutional mechanisms (treaties, legislation etc) are used to achieve independence.  It could even be held before the 2014 referendum, so that voters can then see, in detail, the independence package they are voting about.  Scotland has some, albeit unofficial, experience of constitutional conventions; the Commons Political & Constitutional Reform Committee under Graham Allen is currently holding an inquiry on this very subject, and the McKay Commission on the West Lothian Question can more usefully spend its valuable time and expert resources in examining how inter-parliamentary relations with the UK can positively contribute to any such convention and independence-pathway process.

The role of general elections?

There is also the fact of upcoming elections, not just the Holyrood elections in May 2016, but the Westminster elections in May 2015.  If there is a YES vote in late 2014, what would be the purpose, even the point, of the UK general election in Scotland mere months later?  Never mind the parliamentary and governmental impact of the departure of all Scottish MPs at some future date during that 2015 Parliament, would these MPs be, and be seen to be, mere lame ducks, or will they be regarded (if only by themselves) as the UK-level supervisors of the independence process?  

And what of the 2016 Holyrood election?  Is it the idea that it will be somehow transformed into the first elections to a sovereign Parliament of an independent Scotland, or will they be the last elections to a devolved Parliament within the UK, a Parliament largely devoted to negotiating and finalising a independence settlement? 

Arguably, either or both these elections could be utilised to contribute to some form of constitutional convention, albeit a post-referendum one.  Either formally or otherwise, the Scots MPs elected in 2015 could form part of such a convention, perhaps with the existing MSPs and, if thought desirable or necessary, other representatives of Scottish civil society. 

Time is short

The late 2014 referendum may seem a long way in the future, but, in constitutional terms, time is actually very short, especially when considering such novel, complex and highly sensitive, even incendiary issues such as those discussed in this blogpost.  The Scottish referendum electorate – as well as ‘expatriate’ Scots, and everyone else in the rest of the UK – do not just deserve to hear the views of all interested parties, but should also start making known their own views on their constitutional future NOW.