The Scottish State decides its future – without Westminster’s help

David Younger on behalf of PA Scotland / Scotland Decides.

At the outset we wish to make it clear that we fully support the aim of creating a convention – call it national or citizens or any other name – as long as its agenda is to provide a platform for the Scottish people to examine and discuss what is desirable in our society for the future, and to express their opinion on every aspect through the mechanism of a popular vote. It is in respect of this last point that we created Scotland Decides.

Scotland Decides is basically a voting platform. It was brought into being as we became aware that traditional voting was not available either for national or local matters and that anything as contentious as a referendum on independence was in the hands of the UK government and completely out of the question. It works on two levels. The first is the unique ID that each registered voter is given. This is used for regional or local voting and can also be used for national votes which can be used as a very accurate opinion on any subject put forward. For voting requiring national or international authority, i.e. any matter of a constitutional nature, we use the voting app which is blockchain enabled and internationally verifiable. In due course all registered voters will be invited to download the app and set up their own account and PIN which will be accessible using a system similar to banking apps.

There is much more which we will be happy to explain further but, for now, this is for basic background in terms of exploring the idea of a national convention.

For a national convention to be successful, it is necessary for it to gain authority which means, ultimately, statutory authority. It has to exist as part of the legislative process both before and after the putative event of independence.

It is a fundamental principle of the organisation of any project that the objective be established at the very outset. Thereafter the means to achieving that objective must be examined in the greatest detail and only then can a programme of works be set out.

We have attached a series of schedules which are lengthy but contain a clear description of the situation we must face in a number of key areas. The notes are linked to elements of the programme set out below with the reference numbers attached.

1.00 What Is The Objective?

If we begin with the exercise of self-determination it has to be recognised that self-determination can only work if it can be accepted as legislative authority which must happen within the Scottish state whether or not there is a formal declaration of independence, in effect, independence by default. (1a) Of course that is only half the story. If the convention gains the authority of the Scottish people, that authority has to be translated on to the international stage. (1b)

If the above represents the core objective of the exercise, we should consider making a mission statement to this effect, then we can move on to the design of the convention itself.

2.00 The Convention As A Means To An End

If we think of the convention as a machine and view it as such dispassionately then it is possible to create the mechanism in a way that is not affected by prejudices or preconceived notions of its function (1b).

In imagining the convention as a machine, it is also helpful in understanding that this machine has to be capable of performing the function allocated to it from the very outset (2). To analogise, if the plan is to produce an automobile one does not start off with a vacuum cleaner. Whatever machinery the convention requires to follow through with, its objective has to be in place at the outset and designed for the function it has ultimately to achieve.

Designing the convention can be addressed as two distinct elements. In the first, a very basic layout aimed at establishing the full tripartite assembly. The second is a more detailed approach to the business of the convention together with the necessity of engaging public voting. One of the key purposes of the convention is designing the Scottish state and this will be the primary function of the convention up until a certain point is reached where it becomes obvious that it cannot be achieved under the current system of devolution.

This is where the important decision has to be made (3).

There is also the not unimportant matter of financing the convention (4).

NOTES

1a) Establishing the authority of the Scottish people is not as simple a task as one may think. In the first place it has to be paramount that the public understand that any convention has, or will have the power to move legislation forward. In this respect it is absolutely essential that the convention has the involvement not just of ordinary people and parts of civic society but also of elements of political representatives, namely, those elements which exist within the current UK constitutional system. People have to trust the convention to deliver and, like it or not, that involves an existing political system which won’t go away just because some want it to. At the point of achieving independence by default – namely a form of self-determination by which a recognisable authority within Scotland makes decisions which otherwise could not be made – establishes the convention as a statutory body – one which, by the way, will also require affirmation through the Court of Session. Without the involvement of the Scottish Westminster MPs this is impossible.

Whatever structure the convention has to have in place to achieve delivery of its objective has to be in place at the outset. From its very inception the convention needs to make decisions and pass resolutions which have a direct impact on the operation of politics from the Scottish perspective within Westminster. In designing the convention process, whatever’s needed at the end has to be in place at the beginning. Five years of intensive research and discussion across a broad range of opinion has demonstrated that this is not negotiable – there is no alternative.

1b) It is very important that we understand the constitutional divergence between England and Scotland particularly where steps are taken to return legislative and determinant power to Scotland. Currently we have , through the device of the Scotland Act, an administration which, despite Alex Salmond renaming it “parliament” together with an executive (renamed “government”) is in effect a department of the Westminster system and, in Scottish terms, unconstitutional and, strictly speaking, illegal. Yet this is the Act and the system that gave birth to it that successive independence-supporting parties insist on using to gain permission from Westminster to hold a referendum on independence. Despite the oft-repeated references to the Claim of Right and to the existence of Scots law as opposed to UK (i.e. English law) virtually every campaign seems to centre around UK constitutional settings and that’s where the UK state is at its strongest. Taking such a route to independence or even self-determination is like taking a knife to a gunfight.

The Vienna Convention 1979 established in international law that any party or parties to a treaty could withdraw or dissolve that treaty. The means of doing so require some form of authority from the government or governments involved but the Convention also established that elected governments have no right to alter any treaty without the understanding of their people and, of course, the co-operation of the other parties involved. Governments can ratify treaties but they cannot unilaterally alter them, nor do they have any right to prevent other parties to the treaty from withdrawing if they see fit to do so.

In the conduct of the convention there will presumably come a time when a question is put to a popular vote on whether we wish as a nation to continue with the Treaty of Union or to dissolve it. If we assume that the result of such a vote is to remove ourselves from the Treaty, we can then formally instruct our MPs to leave Westminster and, at the same time, issue notice that the Treaty is void. In terms of their legislature it does not involve the Supreme Court and there is nothing that Westminster can do about it although that doesn’t mean that they can’t be thoroughly nasty in other ways.

Of course, it will be some considerable time after its foundation that the convention will reach this stage. A lot of preparation has to be undertaken before we are ready to deal with the consequences of withdrawal and it has to be understood that some other form of understanding, maybe by another treaty, has to be achieved with our southern neighbour. To avoid chaos, some form of expert committee may be formed which, possibly for several months before the decision is taken over the Treaty, will have worked to put the various elements of an independent nation in place and substantial work must be put into making Scotland’s mark internationally. Much of the work in determining all the elements which the convention must address has already been done but it has not been possible to attempt any kind of popular consensus. To examine all this is the main workload of the convention.

There is an additional important factor which should be built into the design of the convention and be active from the outset and that is the matter of the Scottish constitution.

2) The Functional Design Of The National Convention

Given the nature of the objective and the means to achieve consensus it has to be understood that the convention cannot simply make policy, it can only pass resolutions which must be put to a popular vote. The engagement of all parties within the convention has to be on the strict understanding that they cannot make judgements relating to key constitutional matters without the authority of the people.

The convention will have the freedom to set its own agenda. As this is so, it has the potential to create conflicting results and substantial confusion given that it cannot be relied upon to address issues in an orderly fashion and that many items which would be under examination will overlap and perhaps even conflict with earlier resolutions. In the ongoing process of the convention a secretariat numbering about six individuals, at least one of which should be a legal expert, should be formed. In addition, a constitutional framework has to be in place. In this way, the wording and meaning of resolutions passed in successive sessions of the convention can be drafted without conflict with previous resolutions.

For the constitutional framework we look back to the Claim of Right. As a constitution in itself it is outdated and, frankly, illegal internationally but contained within it are nuggets of value and it has the suggestion of a new format which can be used to develop a full Scottish constitution as the convention progresses.

Using the American and the Swiss models, a constitution consisting of just five articles covering basic rights can be adopted at the outset of the convention. A group of us are working on this and the exact wording of the articles has not been formulated as yet but suffice to say that the articles will set out the rights such as freedom of association, freedom of speech, subsidiarity in government and the right to contest legislation. Within the articles, resolutions passed at convention meetings can be incorporated ensuring that conflict is addressed before it arises. As the convention progresses to statutory authority, the full constitution can then be put to a referendum.

3) Statutory Authority and the Dissolution of The Treaty of Union

If the convention is to be successful then it will reach a point at which steps must be taken to enforce the country’s right to self-determination. Under the UK constitutional arrangements the only legal representatives are the MPs we send to Westminster and this is understood at international level. Although, for reasons stated above, these MPs will be part of the convention, at no time until this point is reached does the convention require them to formally leave the UK parliament. Some may choose to do so at their own volition but no formal statement is made.

The issue of the instruction has been set out in (1b) above and it should be noted that this is the one and only time that interaction with UK constitutional law takes place. Any challenge that the UK government may wish to make to this or to the successive vote to dissolve the Treaty has to be made internationally and, as has been made clear to us in the past, the UK government hasn’t a leg to stand on.

Of course, all Scotland’s ducks must be in a row and there is nothing here to explain exactly how we ensure that the machinery of the nation state of Scotland can be in place and viable at the exact time of a yes vote. In all probability there will be a period of fractious and messy negotiations before true separation happens but there are many ways that this episode may play out. It is not appropriate to guess.

But is the convention over? Has it done its job and can it be put to bed as it were? A suggestion has been made that the convention, now imbued with statutory authority becomes an element of the legislative system as, say, a second chamber albeit with a slightly altered membership and different terms of reference but this is for the convention to decide although we expect at least that online voting will become the norm for future elections.

4) Where Does the Money Come From?

At the very earliest when we were first talking about a convention it was obvious that the funding sources available at that time were woefully inadequate. For the convention to run its full course it will cost somewhere in the region of £2m. Given, for example, the need for the convention to hold regular meetings has to take into account not only the number of meetings but also the length of each meeting. While much of the engagement of each meeting may be online, it should not be assumed that all but a handful of meetings can take place this way. While many members will need to engage by video link, the meetings themselves will be largely in-person.

It is by no means unlikely that meetings may go on for two or three successive days and the some sessions may be less than a week apart. Hiring facilities in advance under such circumstances would be next to impossible. It is, however, possible to lease an appropriate sized venue with a view to using it as a fall-back facility without compromising the policy of holding some meetings at different venues across the country.

Additional costs lie in the employment of full-time staff, video facilities, general expenses and publicity.

Given the size of funding requirements, there is concern about large scale donors potentially compromising the independent integrity of the convention. It was with all this in mind that Scotland Decides was formed to include a small registration fee. This would provide the means to fund the convention through the people and would cover the cost of the convention in addition to the voting platform. It is disappointing that voter registrations have not been in greater numbers than they have so far but it is not surprising given that as of today’s date, hardly anyone even knows that a convention is being planned and that even when publicity gains a bigger audience, the public need to know how the convention will work before any enthusiasm can be generated. Nevertheless, Scotland Decides is there and will be for the next eighteen months at least. www.scotlanddecides.org

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For anyone wishing more information, we have about forty five pages of data accumulated over the last five years together with the experience of two failed attempts by others who we’ve engaged with. You may also subscribe on our website, it’s free, and receive regular updates. We also welcome anyone who wishes to actively engage. Please contact me directly at dyounger@rocketmail.com

References:

https://www.legislation.gov.uk/aosp/1689/28/introduction

https://legal.un.org/avl/ha/vclt/vclt.html

https://www.parlament.ch/en/%C3%BCber-das-parlament/how-does-the-swiss-parliament-work/Rules-governing-parliamentary-procedures/federal-constitution/federal-constitution-1848

https://www.scotlanddecides.org

https://voatz.com/partners-and-affiliates/

https://bellacaledonia.org.uk/2018/05/10/scotlands-blockchain-democracy/?fbclid=IwAR2ZINJid3q0u9-MWb5XAq_vJDwCblppqUJWjQxaY6GPed7w4rhHoiAa08w

https://academic.oup.com/icon/article/9/1/274/902275?searchresult=1

David Younger

2^nd March 2026