It will not be controlled or dominated by politicians or the “usual suspects”
This really will be for the people and by the people. Politicians will want a Constitution that tends to favour them and their party. The likelihood is that the people will want Constitution that favours Scotland as a whole.

Legitimacy
Many might say, as did Donald Dewar, that the current devolution arrangements are “the settled will of the people of Scotland” and that there is no need for further change. That would be true if all options had been presented to the people in the referendum. In fact, only two options were offered – devolution or the status quo. Other options were never put. So, the jury is still out on what the settled will of the people of Scotland is. Whatever it turns out to be, it has to find a more accurate means of expressing itself. It is wholly legitimate to attempt to find that means.

Others might question the right of the people of Scotland to decide what their constitutional future should be. In fact, that right is powerfully enshrined in two important legal principles, one fairly well known and one less so. The first principle, as we have already noted, is the distinctly Scottish principle of the “sovereignty of the people”. This has been asserted in the past (e.g. Lord Cooper in McCormick and others v HMA, 1952) and, of course, more recently when some notable Scots signed the Claim of Right. The second principle is the “right to self determination”, as stated in the United Nations Charter, to which the UK is signatory. The International Court of Justice (which is the United Nations’ own court) has confirmed that the right to self-determination is a right held by people rather than a right held by governments. That chimes well with “sovereignty of the people”. And the two important United Nations studies on the right to self-determination set out general conditions that give rise to the right. They are: a history of independence or self-rule in an identifiable territory; a distinct culture; and a will and capability to regain self-governance. Scotland surely qualifies for the right on all three counts.

The Constitutional Commission will be composed of a number of citizens from different areas of Scottish society, who have recognised credibility and authority, but who will work openly and widely with civil society. The Commission has four broad aims:

Some might wonder why all these issues cannot be decided within Scotland’s Parliament. It is worth quoting again from the Power Inquiry: “Changes of this magnitude cannot be left simply to elected representatives…Only a sustained campaign for change from outside the democratic assemblies and parliaments of the UK will ensure that meaningful reform occurs. We, the people, have to stake our claim on power.” (Concluding words of the Executive Summary of the Power Inquiry)

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