Guest Blog: Constitution First

Whit Noo This guest blog is by Stewart Robinson: “a time served Civil Servant, which should not be held against him! He is married with one daughter and lives in East Lothian, where his hobbies include overthinking everything and grinding his teeth.”

Stewart Robinson writes: During the indyref campaign I made lots of new friends, all sharing the same passion for independence, but I have to share my thoughts with my new friends in the knowledge that some of you will not wish to remain my friend after you read this post. I respect all opinions, even those I cannot agree with, but I will understand if you cannot live with mine.

To begin with, I think we must accept that we lost the vote fair and square. Yes, there was BBC bias. Yes, there were scare tactics from the Better Together side, but we also got our point across often enough. Sadly though, our case just wasn’t strong enough to convince the wavering voters to support the idea.

It isn’t fair or productive to characterise No voters as lesser beings, or to see them as simply not understanding the issues. To us independence seems like a no brainer, seems like the realisation of a democratic equality that has thus far been missing from the so called United Kingdom. We see Scottish self-determination as being a means of taking our destiny into our own hands at the same time as helping the people of rUK to fix their systems of governance.

But more than half of Scotland remained unconvinced, and that is no-one’s fault but ours.

We used the SNP white paper as evidence of how things might be, at the same time as telling people it wasn’t about the SNP. We waved the Saltire and sang Flower of Scotland, then said it wasn’t about Nationalism. We applauded Alex Salmond, and then told people it wasn’t really about him.

The independence movement was a victim of its own expectations. The SNP had no choice but to launch their bid for independence as soon as they had a majority in Hollyrood, but the schedule was short and their allies were few. They didn’t have time to gather international support or to work towards achieving the kind of consensus that would have ensured victory.

The referendum vote was on a constitutional issue, but there was no constitutional solution on the table. Of course, with a Yes vote under our belts we could have then written a constitution, but how much better would it have been to write the constitution first, with the help of anyone who wished to be involved – all groups, all parties working together not in the name of independence, but in the name of the good of all the people of Scotland?

To me the phrase “In Scotland, the people are sovereign” should be a rallying call, something that only those who oppose the people would disagree with, and something almost everyone could get behind. I think we might need to start again from the ground up and define what we mean by “Scotland”, because whilst we all live here, there is clearly a schism in the shared vision.

Let’s agree that in Scotland the NHS will always be free at the point of delivery and will never be run for profit.

Let’s agree that Scotland will never harbour weapons of mass destruction, or take part in illegal wars.

Let’s agree that every person in Scotland will be entitled to a living wage, a place to live, and the opportunity to take a full part in the democratic process.

If we build a communal, consensual vision of the Scotland we’d like to live in, then the divisive concepts of “Independence” and “Unionism” become parochial and outdated. Why not share some functions and powers with the rest of these islands, where it is to our mutual benefit? It seems to me there is nothing inherently wrong in working together as people for the betterment of all, as long as the systems we operate under are not as broken as they are today.

Yes, we need to free ourselves from the selfish tyranny of the Westminster gentleman’s club. Yes, we can do a better job of governing ourselves. Yes, we can build a fairer modern democracy.

But don’t we need to achieve a consensus about what that country would (or could) look like before we try again to bring it into being? We did it once before with the advent of the current Scottish Parliament, we can and must do it again.

But it may mean we have to wave our Saltires a little less furiously.

Unilateral Declaration of Independence

I think we should think very carefully about the circumstances under which the SNP might make a Unilateral Declaration of Independence.

In effect, we have already attempted this with the independence referendum, albeit we had a consensus with the UK government (in the form of the Edinburgh Agreement) about how the thing would work. Still, the principle of popular sovereignty was at the heart of it, and the Edinburgh Agreement was simply a negotiated insurance to offset some of the known problems of a unilateral declaration of independence.

To be clear, no country that declares independence without a democratic mandate to do so can expect anything but a very rough time from the international community, but in Scotland’s case there are actually three useable routes to unilateral declaration of independence (setting aside for the moment the impact of a UK referendum on Europe).

The first (a referendum), we’ve already tried, and we could return to it at some point. However, in the short to medium term the prospect of revisiting the referendum mechanism seems remote, given recent events. Much depends on what Westminster comes up with in the form of further powers, and how punitive they are in pushing their program of austerity.

If full devo-max is delivered (everything but defence and foreign affairs) then a unilateral declaration of independence is off the agenda, probably forever, so no prospect of a referendum. The weaker the powers “gifted” by Westminster, the better the chances of a unilateral declaration of independence eventually becoming a possibility, whether by referendum or one of the other means.

If we factor in the potentially devastating double whammy of reduced funding for Scotland and the application of tax raising “powers”, then we are in the topsy-turvy situation where the worse the Scottish people feel about being in the Union, the better the chances of Scotland holding its own referendum and simply getting out.

The second mechanism is the Westminster General Election.

There is an idea going around that if the 45% stick together and either back the SNP directly, or back an electoral pact between the SNP and other independence friendly parties, then Labour will be finished as an effective political force in Scotland.

If the SNP won the majority of the Scottish vote in the Westminster General Election on the ticket of declaring independence unilaterally then I believe it would be possible for them (already being the incumbent Scottish Government) to do so. But there are significant problems with that.

There would have to be an almost unimaginable increase in the SNP vote. To get more than 50% of the seats in the First Past the Post system the SNP would have to be running at something like 45-50% of the vote. But even with that share of the vote the unionists would point out (quite validly) that there were still as many or more voting against, and therefore the mandate is compromised.

Without the equivalent of an Edinburgh Agreement in place Scotland might find itself isolated by more than just rUK, to say nothing of the potential for domestic unrest.

Also, the prospect of support for such an independence focussed campaign passing the 50% barrier seems unlikely given that all the same arguments that we’ve just been through would be replayed, and it is possible the Unionist vote would solidify rather than weaken. But as I said previously, much would depend upon how mean Westminster is towards Scotland between now and the General Election next year.

The third way for a unilateral declaration of independence to appear back on the agenda is through the Scottish Parliamentary Election in 2016. If the SNP were to make a unilateral declaration of independence their platform for that election they could use victory as the platform for a declaration, but again they would have to get more than 50% of the vote to deal with accusations of the declaration being anti-democratic.

The significant danger here is that if the SNP failed to achieve a majority of the vote, even if they had the majority of seats in Holyrood, they might never recover, and Scotland might eventually be condemned to Unionist rule thereafter. High stakes stuff!

By now you may be thinking that I’m against the idea of a unilateral declaration of independence, but I’m not. Ultimately it’s a choice between unilateral declaration of independence or a slow osmosis towards independence through gradually accumulated powers, and I really do think a clean break with a good majority behind it is by far the better option. But there is a significant part of the puzzle missing, which is simply that we are all focused on achieving a constitutional settlement when there is no constitutional solution in evidence.

I hope to deal with this in more detail later, but for now let me point out that there are many groups out there working on this very problem, and what we need to do as a movement is get anyone who wants to engage now with the process of creating a broadbased movement towards figuring out what we want a future Scotland to look like, and we must do that as a matter of urgency so that before we ask the people of Scotland to vote again on independence we can place before them a properly thought out, non-partisan constitution that removes ambiguity and makes it absolutely clear what’s on offer and what’s at stake.

We shouldn’t settle for 51%. We need 100%.

The Smith Commission

I’ve written to the Smith Commission asking that he recommends the re-launching of the constitutional convention (or something very similar), in an attempt to hammer out a solution that everyone can get behind. It is very tempting to see our divisions (No vs Yes) as being irreconcilable, but I think as an emergent nation we owe it to ourselves to do better and at least try to appreciate the concerns we all share.

I believe that a written constitution could provide a good framework upon which individual party policy could thrive, without sacrificing the spirit of what ordinary people in Scotland want. It may seem to some like a silly adolescent dream, to wish for things to be better, and many will simply stick to their guns and refuse to abandon their carefully and lovingly constructed barricades.

But let’s all of us understand why those barricades (on all sides) are there – they protect us from having to accept that there may be opposing viewpoints out there that are well founded. We really risk going backwards if we vilify and demonise ordinary people for having convictions equal to our own.

But there is a lot we can agree upon, or at least achieve a consensus upon. That doesn’t mean we have to be unanimous in all our deliberations, of course not. Democracy means we proceed by the majority, but the greater the majority is the less pain there is for those who find themselves out of step. In a very real sense the pain so many of us have felt since the lost vote is perhaps heightened by the narrow margin of the loss. We were so nearly there!

I cannot tell you what the constitution should have in it. That would defeat the purpose of suggesting we have an open and frank debate. I’m sure once we have a forum for that debate everyone will want to have their say, me included.

Like the Scottish Government’s recent draft I believe the document should have at its heart the sovereignty of the Scottish People. But even more than that (and here I really do dare to dream big) I think the constitution should have within it the detailed mechanisms whereby that sovereignty should be made real in the world.

It’s all very well to bang on about the sovereignty of the people, but it’s only tokenism if we maintain the same outdated mechanisms of public involvement. At present you get to vote every few years, and you can become an activist and join a party or a pressure group. All of that’s fine, but why are the privileges of participation not extended to every citizen? Should it not be incumbent upon every citizen to play their part?

A year or two ago the politicians could have argued that ordinary people were not interested in politics. Now we know different, and there’s no reason why We the People as sovereign agents in our own land cannot demand that things be done better.

Imagine the old and the young, the rich and the poor, the Yessers and the Noers, all getting involved. That’s what we have to aim for – not 45% vs 55%, but 100% all taking part in making our country into the place we want to live in, by consensus, led not by the least of us but by the best, by the men and women who understand that the people really are the boss, who understand that what we want from our politicians is that they serve us, not the other way around.

A silly dream? Maybe, but why not dream? We got here by dreaming. Why not see how far it can take us?

But we need to work together. We need to know what we are doing, what we’re voting for. I believe in time we will be glad we didn’t win the referendum in 2014. Don’t get me wrong – I was gutted we lost, but I have a feeling we have a real chance to make it so much better.

But whatever we do we have to find a dream that we can all share in. One hundred percent.


Everyone in Scotland is invited to respond to the Smith Commission. The Commission is considering “what further powers should be devolved to strengthen the Scottish Parliament within the UK”. The deadline for responding is 5pm Friday 31st October.

There are three ways to give your views:

  • By email to
  • By snail-mail to The Smith Commission, 7th Floor, 144 Morrison Street, EH3 8EX
  • Via the Smith Commission website: from this Monday 13th October the website will have a dedicated ‘haveyoursay’ page where you can enter your ideas directly

This guest blog was originally written in the form of several Facebook posts on the Constitutional Commission – members and supporters group.

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Filed under Guest Blog, Indyref White Paper, Scottish Constitution, Scottish Politics

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