I ONLY met Sir Neil MacCormick once, in a coffee shop not far from Old College, Edinburgh. Although I was then but a young graduate student, and he a senior professor of Public and International Law in the last year of his life, he gave me several hours of his time to discuss the constitution of an independent Scotland.

For the previous two decades, Professor ­MacCormick had been the SNP’s leading constitutional authority. He was the main ­influence behind the SNP’s draft constitution for an independent Scotland – setting out a ­vision for the legal and political architecture of a Scottish state.

The draft he came up with was not perfect. One might quibble over details, ­omissions and ambiguities. I have tried, in my own work, to build upon that ­foundation. Nevertheless, he correctly identified the ­centrality and cruciality of the constitution to the independence project. Independence is not about ending an old state, it is about building a new one.

MacCormick knew that the kind of freedom worth winning is the kind that comes from having a well-constituted democracy that is able to serve the public interest. His vision would take some elements of the Westminster model as a basis, for sure, but would transform them to be more democratic, more liberal, more ­inclusive, more robust.

As well as the substance of a new ­constitution, MacCormick considered ­questions of process and sequencing. At times he argued that ­constitution-making should proceed a referendum, and that the vote should be held not on the general principle of independence, but upon a specific constitutional text for an ­independent state. At other times, he accepted the idea of a referendum on the principle of ­giving the Scottish Government a mandate to negotiate the terms of ­independence, so long as there was broad agreement upon, and ­commitment to, a constitution to be ­adopted ­before the

outcome of the transition to ­independence.

A critique of these approaches was that they would not allow for fully inclusive constitution-making: the constitution would be the SNP’s project, offered to and accepted by the people, but not a genuine act of popular constituent power. This was a matter of practicality – it would not be possible to engage the anti-independence section of Scottish society in the process, until the question of independence was settled.

This later gave rise to the two-step ­process ­endorsed by the SNP since 2014 – first, an ­interim constitution to provide the basic ­foundation for an independent state, and then afinal ­constitution, developed in a more inclusive way, to give definitive form to that state after ­independence has been achieved.

But all of this was predicated upon two ­assumptions – firstly, that a lawful referendum on independence could be held, and secondly, that the British Government would honour the result. That was the situation in 2014. It is no longer – at least, not straightforwardly – true today. Now we have not only to convince the people of Scotland to want independence, but also to convince the UK Government to let us have it.

Different circumstances call for different ­strategies. MacCormick’s first principle was that of popular sovereignty, as articulated in the Claim of Right – the right of the people of Scotland to determine our own constitutional future.

If the referendum route is blocked and ­using a parliamentary election as a de facto referendum is fraught with difficulties (not least because people are not voting exclusively on a ­constitutional question), then another way to make that decision must be found.

That way is to hold elections to a Scottish ­National Convention. An Act of the Scottish Parliament could establish such a body – ­really a kind of glorified Royal Commission, but ­directly elected by the people. All parties, for or against independence, could compete in the elections.

The Scottish National Convention would have a mandate, set out in its establishing Act, to draft a constitution for Scotland. If a ­pro-independence majority is elected, it will be a constitution for an independent state. If not, they might also usefully draft a constitution for a country that is not fully independent – like, say, Gibraltar has.

I will accept, as a matter of fact, that we ­cannot, in the absence of revolution, give legal effect to that decision without the approval of the UK Parliament. However, as a matter of ­convention, and in accordance with that Claim of Right principle, the UK Parliament has a duty to approve the decision that the Scottish people make. We need to force them to realise and ­acknowledge that, even if ultimately, they do so for the sake of their own convenience.

The mandate of a directly elected Scottish National Convention, which has worked out and approved a draft constitution for ­Scotland, would be very hard indeed for the UK to ­ignore. It would, if nothing else, force them to the ­negotiating table. Perhaps they will then ­demand that we hold a referendum!

Graeme McCormick is Wednesday’s guest on the TNT show.
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