My submission to the Smith Commission

Dear Lord Smith

Much of the debate around your Commission's work has focused on which powers of  daily governance should be removed from the reserved list. These are important, and I commend the excellent submissions by the Scottish Government and the Scottish Green Party, but I want to focus on the question of democratic legitimacy. I therefore ask the Commission to address two fundamental issues:

• the sovereignty of the Scottish people
• the right of the Scottish people to democratically assert their self-determination in accordance with the UN Charter

Sovereignty of the Scottish people


The Scottish principle of popular sovereignty was first codified in 1320 in the Declaration of Arbroath, and reasserted in the 1989 Claim of Right as: "the sovereign right of the Scottish people to determine the form of Government best suited to their needs".

That Claim of Right was supported by the overwhelming majority of Scotland's elected Members of Parliament, whose parties are represented on your commission.  It has subsequently been endorsed by the Scottish National Party, and by the Scottish Government in its submission to your Commission.

Clarity on this fundamental constitutional question is the foundation of everything else which the Commission may consider.  Unless your commission is clear whether it is based on "the sovereign right of the Scottish people" or on some other principle, then any specific proposals will amount to an ad-hoc agreement rather than a durable settlement.

•  Recommendation: the Commission should explicitly acknowledge the 1989 Claim of Right as the basis of its discussion and its proposals

Right of the Scottish people to democratically assert their self-determination in accordance with the UN Charter


Article 1.2 of the Charter of the United Nations asserts as a fundamental purpose of the United Nations "respect for the principle of equal rights and self-determination of peoples".  In the 69 years since the adoption of the UN Charter, that principle of self-determination has been upheld repeatedly both in political forums and in international law.

The people of Scotland exercised that right in September 2014, when they voted in a referendum to remain part of the United Kingdom. However, that referendum question did not commit the Scottish people to bind future generations to that same decision, and in October 2014 an Ipsos Mori poll showed that 66% of Scottish voters want a further referendum within 10 years.

The 2014 Referendum was held following an Order In Council under Section 30 of the Scotland Act 1998, which gave the Scottish government power to hold one referendum, before the end of December 2014.  When that order lapses, so does the ability of the Scottish people to exercise their right to self-determination.

This lapse of power contravenes both the Scottish principle of the Claim of Right, and the international principle set out in Article 1.2 of the UN Charter.  It risks a constitutional crisis if a future Scottish government sets out to hold another referendum.

* Recommendation: the Scotland Act 1998 should be amended to explicitly allow the Scottish Parliament to hold at any time a referendum on whether Scotland should become an independent country.


Yours, Claire McNab