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In black and white

16 December 13

Analysis of the proposed legal and constitutional process for the transition to independence, and beyond, as set out in the Scottish Government's white paper

by Christine O'Neill

It is perhaps of a piece with the general style of the debate on Scotland’s constitutional future that there is even controversy over how to describe the voluminous document published on 26 November.

Scotland’s Future: Your guide to an independent Scotland was almost universally referred to, in its anticipation, as the Scottish Government’s white paper on independence, but has since been described by unionist politicians and campaigners as no more than a “political manifesto”. The rather prosaic truth is that it is both.

As the Guide explains, it “sets out the gains of independence for Scotland – whichever party is in government – and this Government’s vision and priorities for action if we are the first government of an independent Scotland. It also explains the process by which Scotland will become independent following a Yes vote, and how our newly independent Scotland will work”.

This approach cannot be said to be terribly surprising, especially given that the Guide has been produced by a party of government which enjoys an overall majority in the Scottish Parliament, and which has campaigned on a range of substantive policy positions beyond its commitment to independence. The Guide continues that theme, setting out the SNP’s position on the whole range of domestic and international issues which would face a government in an independent Scotland: defence, social welfare, intellectual property, to name just a few.

For voters who are also Scots lawyers, there will no doubt be considerable interest in the Guide’s proposals for the constitutional framework and legal system. Those proposals reflect the different stages through which the country would have to go following any Yes vote in the referendum – from transition to the putting in place of a fresh constitution. Many of these proposals simply confirm and expand on positions already adopted by the Scottish Government over the last several months, albeit they are now presented in the context of the wider Guide.

First steps – the constitutional platform

Should the referendum produce a Yes result, the Scottish Government’s intention is to take action in the short term (“soon” after the vote), to put in place what is described by the Guide as a “constitutional platform for an independent Scotland – the laws and administrative arrangements to establish Scotland as an independent state”. That will involve, it is said, legislation being passed by both the Westminster and Holyrood Parliaments to confer on the Scottish Parliament the power to declare independent statehood for Scotland and, in the meantime, to enable the Scottish Parliament to legislate in all policy areas reserved to Westminster under the devolution settlement.

The former step is arguably unnecessary – it can hardly be thought that the absence of enabling legislation from Westminster would prevent de facto independence – but is no doubt thought important to “legalise” the declaration of independence and to avoid any doubt on the point.

The second proposal – which would involve an absolute symmetry of legislative power between London and Edinburgh – has the potential to raise interesting academic questions about supremacy and the risk of conflict between the two Parliaments during the transition period.

In practical terms, though, it seems unlikely that the devolved Scottish Parliament would seek to pass substantive legislation in reserved areas such as insolvency law, energy regulation or financial services in the 18 months between a Yes vote and the intended date of actual independence (now said to be 24 March 2016). Rather, the particular purposes for which this transfer of power would be used are said by the Guide to include:

  • further entrenching the European Convention on Human Rights (ECHR) so as to give it the “same legal force” for reserved matters as it currently has for devolved matters;
  • providing for the continuity of the monarchy in Scotland;
  • providing for “a transparent and democratic system for ratification of treaties”;
  • providing that all current laws will continue in force after independence day until they are specifically changed by the independent Scottish Parliament;
  • defining entitlement to Scottish citizenship;
  • providing for the Supreme Court of Scotland;
  • placing on the Scottish Parliament a duty to establish a constitutional convention to prepare the written constitution.

Some of these proposals are unexceptional: legal provision for continuity of laws and for defining entitlement to citizenship of the new state would be wholly in line with international precedent and practically necessary. Some others may be unnecessary: if areas currently reserved to Westminster are “devolved” during the transition phase, then – by virtue of s 29 of the Scotland Act 1998 – it would in any event be outside the legislative competence of the Scottish Parliament to pass laws relating to those matters which were incompatible with the ECHR.

Certain proposals are not quite what they seem: the proposal for a Supreme Court for Scotland in fact amounts to a proposal to remove the right of appeal to the UK Supreme Court in London without any new appellate court within the Scottish jurisdiction. And, finally, some of these proposals are intriguing: what is the status (other than a clear declaration of intent) of a legal obligation to establish a constitutional convention placed on an as yet unborn independent Scottish Parliament, by a devolved (and British) Scottish Parliament?

A written constitution

Again, though, that interesting legal question is unlikely to have to be addressed by the courts. The Guide is clear on the current Scottish Government’s intention that an independent Scotland should have a written constitution, and it is hard to imagine a new Scottish state failing to join the rather large family of nations which are governed by such constitutions.

In one of the (perhaps unintentionally) amusing parts of the Q&A section of the Guide, the question is asked: “Are we supposed to know all this?” It’s a question posed in the context of the preceding paragraphs, which attempt to describe the UK’s current constitutional arrangements, and was no doubt drafted carefully to produce the following answer: “The UK’s constitutional position is particularly complex and one of the advantages of moving to a written constitution is to make information about government structures more accessible to the people of Scotland.”

The Guide also sets out the Scottish Government’s vision of the process by which that constitution would be drafted and settled. As mentioned above, that would involve the establishment of a constitutional convention shortly after the parliamentary elections scheduled for May 2016. While no timescale for the drafting of a constitution is suggested in the Guide, reference is made to the 12-month window afforded to the Irish Convention on the Constitution, which is currently reviewing (but not rewriting) the Irish constitution.

More interesting, perhaps, are the proposals for substantive constitutional rights set out in the Guide and described as the Scottish Government’s (or perhaps more accurately the SNP’s) “priorities for action”. These are specific constitutional provisions which it is intended will be put to the constitutional convention for its consideration. They include:

  • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society;
  • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change;
  • a ban on nuclear weapons being based in Scotland;
  • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use;
  • the existence and status of local government;
  • rights in relation to healthcare, welfare and pensions;
  • children’s rights; and
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training.

The proposal for a written constitution is justified by reference not only to international precedent, but to a stated desire to move away from a British constitutional theory founded on sovereignty of Parliament, to a constitutional settlement based, it is said, on the sovereignty of the Scottish people. What is of course lacking from this analysis is any discussion of the new (or at least expanded) role of the courts in enforcing constitutional guarantees.

That transfer of power to the courts would be a key consequence of a move to a written constitution, and one which has been little debated so far. One does wonder whether it is realistic or desirable to create a system in which the Scottish legislature would be accountable to the Scottish courts on deeply serious questions of constitutional interpretation but in which, it appears, there would be one less layer of appeal than exists at present.

Many of the proposed new constitutional guarantees could present fresh challenges for the judiciary, going beyond the traditional and relatively limited approach to protection of civil and political rights. Whether they would do so would depend, at least in part, on questions of “justiciability”: could a ban on nuclear weapons (versions of which are to be found in a number of other democracies), or the need for parliamentary approval of military action, be capable of giving rise to disputes at the hands of private interests on which the courts would be willing to rule?

While constitutional protection for the existence and status of local government might fall into the same category, such a guarantee should be relatively uncontroversial.

More difficult are proposals to include social and economic rights, which are inherently difficult to interpret and to enforce – raising the question whether such rights are intended to be no more than aspirational or declaratory.

External influences

On external relations, the Scottish Government’s position is quite clear, but the reaction of other parties would be crucial to the achievement of independence on the terms proposed in the Guide. So far as membership of the EU is concerned, the Scottish Government has long since abandoned its early position that membership for Scotland would be “automatic”. There is a clear recognition that negotiations will be required. Equally, it does now appear to be the position of all but the most ardent unionist that Scotland has a strong case to make for membership.

The terms on which such membership might be granted remain unresolved. The Guide describes the intended approach to negotiations by the Scottish Government as being one based on the “principle of continuity of effect”. In reality, this amounts to an intention to argue that Scotland should obtain membership of the EU on the same terms as are currently enjoyed by the UK – an attractive proposition for Scotland, but perhaps less so for other member states.

The Guide also proposes maintenance of the current common travel area (CTA) within the British Isles, which is the historic basis on which Irish citizens move freely within the United Kingdom and vice versa. The existence of the CTA for 90 years – created and maintained in circumstances in which it could not be said that relations between Britain and Ireland were always cordial – does put paid to some of the more lurid suggestions by the pro-union camp that independence would invariably result in the erection of border controls just north of Carlisle.

There are, of course, further proposals for membership of international organisations, including the United Nations and NATO, but the EU question is likely to be the focus of most argument about external relations over the next 10 months.

The Guide represents a key milestone in the independence debate. Whatever one’s politics, and notwithstanding its somewhat off-putting scale, it paints a fascinating picture from a constitutional law perspective and will be the focus of debate, argument and scrutiny from now until (at least) 18 September 2014.

Christine O’Neill, chairman and partner, Brodies LLP
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