Nicola Sturgeon has stated her intention to endorse a modern Claim of Right for Scotland, but there has been little discussion about the 1988 Claim that is the precedent for her new proposal. David Torrance describes the Claim’s history, and argues that it has meant different things at different times to various people.
Speaking in Edinburgh last week, First Minister Nicola Sturgeon said she intended to invite Scotland’s ‘elected representatives’ to ‘come together to endorse a modern Claim of Right for Scotland through a new Constitutional Convention’ to:
‘declare that it is for the Scottish Parliament to decide whether and when there should be an independence choice and build support for that principle amongst civic Scotland.’
The First Minister was referring to the 1988/89 Claim of Right, which argued for a Scottish Constitutional Convention. That Claim is much cited but little studied. This blog will look at three different uses of the Claim: devolutionist, nationalist and the ‘right to choose’.
Origins and publication
The impetus for the Claim of Right was the 1987 general election. The Campaign for a Scottish Assembly established a Constitutional Steering Committee (CSC) of ‘prominent Scots’ to make practical recommendations on persuading the UK government to devolve power. The idea of a 1689-like Claim probably came from a fringe group called ‘Scotland-UN’, which had submitted Scotland’s Claim of Right to Self-Determination to the United Nations in 1980.
Sir Robert Grieve, an eminent planner, led the cross-party CSC, which included Una Mackintosh (widow of the Labour MP and devolutionist John P Mackintosh), Judy Steel (a Liberal) and three prominent SNP figures: Isobel Lindsay, Neil MacCormick and Paul Henderson Scott. It was drafted by a retired civil servant called Jim Ross. Professor James Kellas called them ‘worthy Scots from the middle-class professions’.
Henderson Scott believed the final CSC report ‘was closer to the views of the SNP than of Labour’, with its talk of the Union as ‘a glaring anomaly’ and ‘a threat to the survival of a distinctive culture in Scotland’. Yet as the cultural historian Scott Hames has observed, the Claim ‘veers away from the consequences of its central argument’ and instead urges the creation of a constitutional convention ‘to draw up a scheme for a Scottish Assembly’.
The Claim of Right thus argued for devolution ‘within the framework of United Kingdom government’ rather than, in Hames’ formulation, ‘an independent constitutional republic’. And while it did not explicitly reject independence, it warned that it ‘would be a vastly more complex task’ than planning for devolution.
Despite this caveat, the then SNP leader Gordon Wilson welcomed the Claim when it was published on 13 July 1988, and the SNP became the first party to endorse the convention idea a few months later (something Wilson had long supported).
Scottish Labour, meanwhile, consulted its members and trade unions, and by mid-September Donald Dewar (the Shadow Scottish Secretary) had made several speeches indicating support for the Claim, something echoed by its MP group in October. A myth later arose that Dewar only committed after losing the Govan by-election to the SNP in November 1988, but this is not supported by the chronology.
Scottish Constitutional Convention
Initially, inter-party discussions regarding the Claim’s proposal for a Scottish Constitutional Convention (SCC) went well, with all but the Conservatives attending a meeting on 27 January 1989. The SNP, however, had three conditions: an elected rather than appointed SCC, a commitment to the ‘sovereignty’ of the Scottish people and a multi-option referendum between the status quo, devolution and its recently adopted goal of ‘independence in Europe’.
Labour and the (Liberal) Democrats acquiesced on the first two demands, but the third – a referendum – proved trickier; Donald Dewar took the view that the SCC could not very well agree a scheme only for it to become one among several options put to voters. There was also disagreement within the SNP itself, and on Sunday 29 January 1989 it issued a press release, which stated that:
‘Scotland lost out [on devolution] in 1979 because of a rigged referendum. It is our view that the SNP cannot take part in a rigged Convention which can neither reﬂect nor deliver Scottish demands.’
Dr Peter Lynch, a historian of the SNP, concluded that the party feared being ‘marginalized numerically but also politically’. In other words, Labour viewed the SCC as a means of reforming and thus bolstering the Union and, as Paul Henderson Scott reflected in 1998, the SNP could hardly be expected to help ‘strengthen the Union from which we wanted to escape’.
A much-quoted line about the ‘sovereign right’ of the Scottish people to ‘determine the form of Government best suited to their needs’ does not actually feature in the July 1988 document. Rather it formed part of a declaration signed at the first meeting of the SCC on 30 March 1989. This stated that:
We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount.
In his memoirs, Canon Kenyon Wright – who chaired the SCC – distinguished between the CSC’s final document (‘a long and closely argued document’) and the ‘actual Claim of Right’ (‘a brief and challenging statement of principle’). As Professor James Mitchell later observed, it embodied ‘a political rather than justiciable claim’ to the ‘sovereignty of the Scottish people’. To that, Kenyon Wright added ‘a moral claim’, concerning not only ‘past history’ but ‘present justice’.
It has commonly been asserted that every Scottish Labour MP except Tam Dalyell – a long-standing opponent of devolution – put their name to the document, but not all of them were present on 30 March 1989. Isobel Lindsay was the only SNP activist to sign the Claim.
Critiques of the Claim of Right and Scottish Constitutional Convention
Unequivocally opposed to both the Claim of Right and the Scottish Constitutional Convention were the Conservatives. Speaking in the Commons in late 1988, the then Scottish Secretary Malcolm Rifkind said that since the SCC was ‘not intended as a genuine debate on the merits and demerits of the constitutional changes which they [the SCC] have in mind’, he did not consider it ‘appropriate for the Government to be represented’.
Rifkind also took aim at Labour’s involvement. Highlighting the longer Claim’s reference to the UK as ‘a glaring anomaly’, the Scottish Secretary said unionists like Donald Dewar were ‘playing with fire’ in endorsing such analysis. Dewar was most likely conscious of the potential to get burned, having earlier spoken of Scots living ‘a little dangerously’ in order to achieve devolution.
The SNP’s withdrawal from the Convention, meanwhile, was criticized by friend and foe. For years, the influential nationalist theorist Tom Nairn argued in the Guardian, nationalists had denounced the ‘feeble fifty’ Scottish Labour MPs for doing nothing, but ‘when finally they did something and actively supported the convention, they were to be denounced as a new parcel of rogues’.
In his contribution to a 1989 book entitled The Claim of Right for Scotland, the SNP’s then press officer, Chris MacLean, critiqued both the Claim and the SCC, saying the ‘very language’ of the former consisted of ‘a superb collection of irreconcilable assertions’, and:
‘The last thing the Claim of Right should be about is a rehash of the tired old devolution arguments from the ‘seventies. What it should have concentrated on was asserting the sovereign rights of the Scottish people – yet this was precisely what it seemed most anxious to avoid.’
MacLean added that the SCC ‘would be sewn up by the Labour Party unionist establishment’ and that it was a waste of time to go ‘cap in hand to London, begging for devolution’.
Those involved in the SCC protested that while the Claim of Right clearly acknowledged ‘the right of the people of Scotland to opt for a wholly independent state’, they did not believe that option enjoyed ‘majority support’. The SNP was again implored to join the Convention in late 1992, but party vice-president Paul Henderson Scott (who had helped draft the Claim) said:
‘The SNP, true to the spirit of the original Claim of Right, reaffirms the sovereignty of the Scottish people, and their right to determine their own future. We believe that this lies in independence within Europe, not within the United Kingdom.’
When the Scotland Bill appeared following the successful devolution referendum of September 1997, Donald Dewar was criticised by the SNP and Scottish Liberal Democrats for reaffirming the sovereignty of Westminster rather than the Scottish people. In an interview with Tony Blair during that year’s election campaign, the Scotsman noted that he appeared to have little knowledge of the Claim of Right. Rather Blair had said ‘sovereignty rests with me as an English MP and that’s the way it will stay’.
Claim of Right phase two, 2011–14
With the people of Scotland having voted for a Scottish Parliament in the 1997 devolution referendum, the Claim of Right was little mentioned after 1999. In his October 2011 SNP conference speech, however, then First Minister Alex Salmond moved to revive the Claim by declaring that ‘next month’ he would ‘ask Scotland’s Parliament to endorse anew Scotland’s Claim of Right’.
The debate and vote at Holyrood actually took place in January 2012, and was opened by Salmond’s then deputy (and current First Minister), Nicola Sturgeon. Her motion asked the Scottish Parliament to ‘acknowledge’ the sovereign right of the Scottish people to ‘determine the form of government best suited to their needs’.
Anticipating opposition attacks, Sturgeon acknowledged the SNP’s failure to endorse the original Claim:
‘The Scottish National Party always supported the sentiments of the claim of right and was involved in the initial work to draft it. The reasons why the SNP was not in the Scottish Constitutional Convention are well documented, but it is history. It is rather childish to say, ‘You didnae sign it then so we’ll not sign it now.’ We are signing up to the principle today; the question is, are Labour and the other parties?’
The Labour MSP Patricia Ferguson pointed out that her party was already a signatory and therefore had ‘no need to sign it again’. The Scottish Conservative leader David McLetchie took a different approach, critiquing the very idea of popular sovereignty:
‘Popular sovereignty is, in a legal sense, a difficult concept to define and describe in practical operation, since any power can be exercised in a society only through its institutions, which is to say through a Parliament that is elected by the people and a Government that is accountable to that Parliament.’
He and other Conservative MSPs voted against the motion. Nevertheless, the Claim of Right had been repurposed in support of independence via a referendum, which took place in September 2014. On that occasion, the ‘people of Scotland’ voted for (a reformed version of) the Union, but the ground had been laid for the Claim of Right’s third (and current) phase.
Claim of Right phase three, 2016 to present day
The Claim of Right reemerged as a political device following the 2016 EU referendum. Opening a debate on the Claim that September, the SNP MP Patrick Grady moved that ‘this House has considered the Claim of Right for Scotland’. Like Nicola Sturgeon in 2012, Grady acknowledged past history, again citing the Scottish Constitutional Convention’s refusal to consider independence. He said:
‘That is the crux of the Claim of Right: it is for the people of Scotland to choose the form of governance best suited to their needs. If our democratically elected Parliament decides on a cross-party basis…to call for another independence referendum, will the UK Government seriously stand in the way?’
Thus the Claim of Right was repurposed once again, this time to legitimise a second independence referendum following the ‘material change in circumstances’ created by Brexit. Scotland’s only Labour MP, Ian Murray, protested that the Claim had already been ‘put into practice’, not least in 2014 when ‘the sovereign right of the Scottish people’ was to stay within the United Kingdom.
Two years later, the Claim of Right was debated again, this time in the House of Commons rather than Westminster Hall. The SNP MP Ian Blackford moved that ‘this House endorses the principles of the Claim of Right for Scotland, agreed by the Scottish Constitutional Convention in 1989 and by the Scottish Parliament in 2012’.
Significantly, the then Scottish Secretary David Mundell indicated Conservative support for that motion, acknowledging that the Claim had ‘played an important part in the campaign for a Scottish Parliament’. In a formal government response a few weeks later, Mundell added that ‘significant deepening of devolution’ via the Scotland Acts of 2012 and 2016 demonstrated ‘the UK Government’s commitment to the devolution envisaged in the claim of right’.
But while the Claim of Right now enjoyed Conservative as well as SNP support, it still lacked – as in 1988/89 – any legal standing.
As Professor James Mitchell has observed, sovereignty – as a doctrine of authority – ‘has been manipulated to suit the political requirements of various viewpoints in various circumstances’. Thus the Claim of Right has meant – or was used to mean – different things at different times. During its first phase (1988–97), the exercise of ‘sovereignty’ was interpreted as devolution within the UK, while during its second (2011–14), independence was the goal. The third phase (2016 until present), meanwhile, was predicated upon the right to choose.
In this respect, the current reading of the Claim of Right – which seems likely to form the basis of the ‘modern’ iteration recently promised by First Minister Nicola Sturgeon – is the least prescriptive interpretation. As Kenyon Wright noted in 1996: ‘Sovereignty is not independence – it is recognition that the people have a right to decide.’
If you enjoy the Constitution Unit blog, sign up for updates in the left sidebar, join our mailing list for news of our events and research, and support us through a one-off or regular donation. Donations are crucial to funding the blog, and the Unit’s research.
About the author
David Torrance is a Senior Library Clerk at the House of Commons Library, specialising in devolution, monarchy and the constitution.