A new book on how to set up an independent Scotland is about to be published. Here, we run our fifth extract from the new Common Weal project:


ONCE an independence referendum is won there are a number of initial tasks necessary to get all of the work completed. One is having the legal right to negotiation, one is having the capacity to do all the actual work, and one is putting in place robust arrangements to make sure that the day-to-day business of government continues effectively throughout the transition period.

So the first thing Scotland should do is to seek “legal personality” (and, specifically, international legal personality). Legal personality just means that a person or an entity is recognised by the law as being able to participate in the law by signing contracts, entering into binding agreements with other actors and so on. Having legal personality does not mean that Scotland is an independent nation state – the UK’s “Crown Dependencies” like the Isle of Mann and Jersey have international legal personality but are not independent. It simply means that Scotland would be designated as an entity which is able to enter into contracts and agreements on the international stage.

This in turn does not mean that Scotland would be able to act as if it was an independent country – the vast majority of international state actors (governments from around the world and their agencies and multinational institutions) would almost certainly wait until Scotland was designated as a fully independent country before entering into binding agreements (and they would be likely to see the agreement of rUK as fundamental to that). But it would enable Scotland to enter into a full range of financial contracts and would make it easier to begin exploratory discussions with international partners.

It would be for Westminster to grant Scotland legal personality and there is no reason why that should not be done quickly. As well as enabling the transition process, it would of course also be a significant and symbolic act in and of itself.

The next crucial element of the post-referendum preparatory work will be to establish the capacity to carry out the work of setting up systems and institutions and to undertake negotiations. There are reasons why the Scottish civil service is not the best body to undertake this work. First, while the civil service in Scotland now operates in a much more devolved manner with many more lines of responsibility terminating in Scotland rather than London and much more of the HR function now located in Scotland, the Scottish civil service is not devolved; it is an integral part of the UK civil service.

This leaves two options – either there would need to be a rapid “separation” of the civil service into two discreet entities for Scotland or rUK or a series of “firewalls” would need to be put in place to overcome the fact that negotiations over Scottish independence would effectively have the same organisation facilitating, supporting and carrying out much of the work of negotiation on both sides of the negotiating table. A second problem is that the civil service answers only to a government which, by the time the transition process has begun, will have no mandate to dictate the shape and details of the transition process. Unless there was a major change in the way the civil service works, all non-government parties and other stakeholders would simply be “consulted” and the active decision-making would be in the hands of the government that was in place at the time of the referendum.

In the event of necessity both these problems could be overcome. But there is a more fundamental problem; there are simply not hundreds of senior civil servants sitting around in Scotland, twiddling their thumbs and looking for something to do. The scale of any one of the tasks involved in achieving Scottish independence would probably be considered a major project in the everyday work of the civil service; combining them all together would be beyond the scale of anything the Scottish civil service had ever attempted.

In addition, the Scottish civil service simply does not currently employ people with the full set of skills and expertise which would be needed. Since – by definition – most of the work involves setting up departments and institutions which are not currently devolved to Scotland or do not exist here, many in the Scottish civil service will have no direct experience of these policy areas.

But perhaps above all, there is enormous merit in making sure that the process of setting up a new Scotland is seen by everyone in Scotland as a collective endeavour, one that feels “owned” as much by those who voted against independence as by those who voted for. It should not become the preserve of one political party or interest group.

For all these reasons, the solution is to create a new organisation to do the work. It should be called the National Commission and it should be kind of like a democratic, time-limited civil service with a single purpose. It would employ people (or take them on secondment), project manage the work, finance it, deliver it and then hand it over to the people of Scotland at the end of the transition process.

The exact structure of a National Commission is open for discussion, but it is suggested that it should have an ultimate governing body which is made up of representatives of all Scotland’s political parties and also of civic organisations such as trade unions, business organisations, third sector bodies and so on. That governing body would have both the initial White Paper and the project plan (both published before the referendum) to guide its work – they would have the responsibility of ensuring that work is done in the spirit in what was presented to the Scottish people in the referendum.

There would of course also be many specialist advisory panels offering guidance to and monitoring of the individual strands of work. It is important to ensure that these are not “captured” by financial and commercial interests but are balanced and always working in the public interest. In addition there are of course many parts of the transition process which must involve participation and consultation. The National Council must be equipped with staff who are expert at best practice in engaging with (and properly listening to) the views of all of Scotland and not just its “elites”. The work of the National Commission must be up to (and even beyond) existing best practice in openness and transparency. There should be no question of this work being “outsourced” to a corporation or any other private body.

A properly established, properly resourced and properly staffed National Commission with clear plans to work to, a strong system of governance and a responsive system of “participatory design” will be a very powerful tool for the Scotland that is being born. It is hard to emphasise how much getting this right is the key to getting so much of the rest of the work done – and done well.

The final aspect of putting in place the basic conditions for transition is to ensure that the work of domestic governance continues uninterrupted, delivering essential services to the public and maintaining the public realm throughout the three-year period. This is fairly straightforward to achieve. There are two main sets of powers necessary to keep Scotland moving during the transition and they both have existing governments.

At the time of a successful independence referendum there will be a Scottish Government in place which has a full mandate to run all devolved services and to legislate on devolved issues. There will also be a UK government in place with its own mandate over reserved issues. Continuity of government simply requires that both of these governments continue to enact the mandates that they have throughout the transition process, with their respective civil services also continuing in their current roles.

There are some complications. The first is that, during this process, it is likely that decisions will be made at the UK level which will not apply to Scotland after independence. Indeed, there may be an incentive to make decisions at a UK level which actively benefit rUK over Scotland during negotiations or by “rearranging the furniture of the state” which disadvantage Scotland (for example, by redesignating the status of certain assets to reduce what Scotland might argue for in negotiations).

There are two solutions to this. First, a mandatory “Transition Committee” should be set up with three bodies in membership – the UK Government, the Scottish Government and the National Commission. The role of this Committee would be to oversee decisions being made by all three bodies to ensure that they do not unduly or unfairly harm any others’ ability to act reasonably within their own remit. The second is to set a “day zero” for all negotiations, a calendar date which defines what moment is taken to be the “status quo”. This date is likely to be well before the referendum itself was held, perhaps one year prior to the date of the referendum. Any changes which are made after that date (especially if they appeared designed to affect the process of independence) would not be considered the starting point for negotiations.

Two other complications arise in maintaining government across the UK as-is during transition, relating to the electoral terms of each government. It is possible that in Scotland a new government might be elected, hold a referendum, win it and still have a full three years of its term left to “see out” the transition process. It is more likely that the relevant Scottish Government will be part way through its term at the point of a referendum vote. That would mean that elections ought to be held for the devolved administration during the transition period.

This clearly makes no sense; there will have to be full elections after Scotland’s independence day so that an incoming government has a proper mandate over the full range of the powers that an independent Scotland will have. In that context, an election to renew a devolved mandate for perhaps one extra year would be of little help. The obvious solution would be to extend the term of the then-existing Scottish Government until the end of the transition period. If this meant adding one year to the term it would probably be uncontroversial.

However, it is in theory possible that a Scottish Government might hold a referendum shortly before it would otherwise be required to hold a domestic election. Extending the term to the end of the transition period in this case could potentially mean one government being in power for eight years on the basis of one election, which might be politically unacceptable to some. This would need to be negotiated, and some sort of “national” government which included representatives from other parties could be a solution.

There is an electoral complication at the Westminster end as well. Again, it is possible that a UK government would go into the transition process with sufficient term left to see out the entire period, but a scheduled UK General Election might fall during the transition period.

There is simply no neat solution to this problem; if Scotland participated it could create a government in London which was destined to fall (perhaps only a matter of months later) when Scottish MPs withdrew. If Scotland chose not to participate it is possible that (for example) Scottish troops could be sent to fight in a war started by a government that no-one in Scotland had any say in electing. There are inevitably going to be some anomalies during the transition process and this is simply one of them. There is likely to be no single, elegant solution to this, so a solution will need to be negotiated as and when the situation is clear.

With these arrangements in place, work on building the new Scotland can begin.