The First Constitutional Convention succeeded essentially because the Labour Party supported it. It would have gone nowhere otherwise. The Second Constitutional Convention (yet to be set up) has to be different. It has to find a way of going directly to the people, partly because that is where sovereignty lies in Scotland (and this precedent must be set from day one), but also because it would almost certainly be disastrous to have a Scottish Constitution shaped by politicians. Even the best of them would unconsciously try to shape it to serve the interests of their own political party, as distinct from the interests of the people as a whole. So, far example, when Gordon Brown contemplates a new constitution, it would be one that reflects his own ideas, rather than reflecting what the people as a whole might wish, assuming that they were sufficiently literate on constitutions to think about such matters.
Yet, if the new Convention does attempt to go directly to the people, it will soon run up against the very vexed question of “legality”. Having been intimately involved in the Sillars v HMA case in 1982, I am acutely aware that the concept of “legality” in Scotland is a very moveable feast. It changes, almost daily, to suit the wishes of those in power. To put this another way, the Scottish courts are very reluctant to interfere with what they call the “political will”. In the Sillars case, the High Court was well aware that there is no strictly legal basis for the application of the doctrine of “absolute sovereignty of the UK Parliament” in Scotland. But they also knew that if they allowed the floodgates to be opened on this issue, they could never be closed again. So, they resorted to an obscure obiter dicta of Lord Campbell in 1849, and the appeal by Sillars and others was denied.
This is why I believe that the Covention has to have a supranational dimension. It has to be able to go over the heads of the courts as well as the those of the politicians. This does not imply that it should do anything “illegal”, but it does imply that the Convention’s concept of “legality” has to transcend the restrictive concept currently held by Scottish (and UK) politicians and judges and lawyers. This means two things. It means being supranational in principle and it means being supranational in practice.
Being supranational in principle is relatively easy, because the principle is already set down in black and white – in the UN Charter. The “right to self-determination” is just waiting to be used by the people of Scotland. Having theoretically tested this particular water in 1981, when I was a member of the Scotland-UN Committee, I am reasonably certain that the International Court of Justice (which the United Nations’ court) would look favorably on a referendum on a Scottish Constitution that had the backing of the people, but that was opposed by one or both of the Parliaments or by the Scottish courts.
Being supranational in practice means doing something similar to what some Scottish clinicians say they intend doing (The Herald 18th May), which is to set up a distinct Scottish representation at the World Health Orgnisation, which happens to be UN body. If they managed to to that, it would be ground-breaking because it would be, to the best of my knowledge, the first time that Scotland had distinct representation on any UN body.