Half a century ago, the idea that there might be a countervailing tradition of ‘Scottish constitutional thought’, less wedded to parliamentary sovereignty and less hostile to abstract constitutional principles, was preposterous to most constitutional scholars. In the orthodox view, north and south of the border, the United Kingdom was a centralised unitary state, divided only by class and never by nationality or geography. Scotland's indigenous constitutional traditions barely warranted a mention in this account. However, a by-product of the rise of the Scottish national movement is the emergence of a ‘distinctly Scottish’ constitutionalism, expressed through a different constitutional lexicon and embodied in institutions that deviate from the ‘Westminster norm’.

The term ‘Scottish constitutional tradition’ does not imply that such a tradition is universal, either in the academy or in popular usage. It makes no claim regarding the acceptance of such a tradition by the courts as a source of constitutional law. It simply refers to trends of constitutional thinking amongst those who have supported greater autonomy for Scotland and which have, to a greater or lesser extent, been absorbed into the lexicon and the assumptions of Scottish public life.

The Campaign for a Scottish Parliament, the Constitutional Convention, and the resulting Scotland Act and its associated provisions, marked a ‘transformation’ of the Westminster system in Scottish constitutional politics. Provisions such as proportional representation, the election of the executive by a formal vote of parliament, an independent commission for judicial appointments, and the entrenchment of the European Convention on Human Rights (ECHR), which were once labelled (with understatement) ‘somewhat controversial’, are now supported by an ‘evident consensus’ of Scottish opinion. This section discusses why that change happened, and, more importantly, the consequences of that change for the future Constitution of Scotland.

The chapter begins with a description of Scotland's place in the ‘Union Kingdom’ (sic). It discusses how that place was threatened and how, in consequence and in reaction to that threat, a new constitutional space for institutional variation emerged. Much of this chapter is taken up with a detailed analysis of early home rule and independence constitutional projects – showing how these proposals initially replicated, and then began to repudiate, the Westminster model. Other influences, both Commonwealth and Scandinavian, on these constitutional proposals are also considered.