STEPHEN MAXWELL, treasurer of the Scottish Independence Convention, suggests popular sovereignty is the route to an independence referendum

Perhaps the most significant achievement of the Scottish Constitutional Convention which from the late 1990s prepared the way for devolution was to entrench popular sovereignty as the founding principle of the new Scottish politics.
 
However, the public debate about the formation of a new Executive which followed SNP’s narrow victory in this year’s Scottish Parliament elections has revealed different understandings of popular sovereignty. Those differences have focused on the role that a popular referendum should play in determining the wishes of the Scottish electorate on Scottish independence.

First, there is the Unionist position advocated most actively in the post-election debate by the Scottish Liberal Democrats. They take the position that popular sovereignty, at least in a proportional voting system, resides in the elected representatives. If the majority of elected representatives is opposed to a referendum on independence there can be no further appeal to popular sovereignty. This position is endorsed by the Labour and Conservative parties. It was also the position of the Scottish Constitutional Convention which asserted that while a change to Scotland’s constitutional position required popular endorsement in a referendum, only Scotland’s elected representatives were entitled to decide whether or not a referendum should be held.

It is not clear whether SNP itself dissents from this position. In its exchanges with the Liberal Democrats the SNP has relied on two arguments: first, that as the party with the largest single share of the popular vote it has a moral right to implement its manifesto commitment to an independence referendum; and second, that surveys have shown a large majority of voters in favour of a popular referendum as the best way of deciding the independence question.

The SNP’s problem is that neither claim obviously trumps the democratically expressed priorities of the majority represented in the Scottish Parliament.

Then there is the civil society claim to popular sovereignty. This was most famously articulated by the chair of the Scottish Constitutional Convention, Kenyon Wright, in response to the question: what price devolution if Westminster said No? “We say Yes – and we are the people.”

Canon Wright is now championing a reconvened convention of Scottish civil society to plot the way ahead using much the same rhetoric borrowed from the Power Inquiry - “We, the people, have to stake our claim on power”. To be sure the Canon does not assert that civil society can displace parliament or the electorate but his advocacy carries a strong suggestion that civil society and popular sovereignty are two sides of the same coin.

There is, however, another understanding of popular sovereignty in which neither
Parliaments nor civil society has a right of ownership. In this understanding popular sovereignty belongs, simply, to the people. In undemocratic regimes this gives it a revolutionary potential, even a revolutionary duty. In democratic regimes it embraces a right for a minority of voters to place before their peers for their judgment a proposition of its own choosing, as in the ‘citizen’s’ or ‘popular’ initiatives which operate in Switzerland and some of the states of the USA.

As well as being complementary to representative forms of democracy, citizen’s initiative may have a particular relevance to the circumstances in which Scotland now finds herself. Proportional representation is justified on its own democratic merits, but it is no secret that part of its attraction for Labour champions of devolution was that it would create an additional barrier to the advance of political nationalism, even, in the words of one of Labour’s campaigners against independence, George Robertson, that it would kill nationalism “stone dead”.

However when combined with those interpretations of popular sovereignty which hand ownership to elected representatives or to unaccountable civil society organisations proportional representation begins to work against the vigorous participative democracy that the advocates of both proportional representation and civil society claim to champion.

Among the reasons for the low level of public participation in politics illustrated again in this month’s Scottish elections is the widespread feeling that politics has become a middle class hobby or career option indifferent to many of the concerns of ordinary people. Add to this source of public alienation an electoral system designed to force compromise between different factions of the political class and it is not surprising if the ‘conviction’ minorities which are the energising force of democratic politics are discouraged.

A power of citizen’s initiative would challenge this discouragement by giving a sufficiently large minority of frustrated voters an opportunity to intervene in politics on terms of their own choosing rather than on the terms dictated by the politicians’ club.
It could be used equally to challenge liberal shibboleths and conservative totems. It might even offer a way of creating a majority coalition Executive. While under the devolution settlement the introduction of a constitutional right of citizen’s initiative would require action by Westminster, Scottish Liberal Democrats could agree that if a sufficient number of Scottish citizens petitioned for a referendum on Scotland’s constitutional future then in the name of citizen’s empowerment they would withdraw their veto.