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The best medicine?

19 May 14

What issues in the independence debate are of most concern to lawyers? If the “Scotland's Constitutional Future” conference is anything to go by, they are as diverse as the profession

by Peter Nicholson

Lawyers can debate Scotland’s constitutional future just as passionately as anyone else. That much was evident from the Law Society of Scotland’s day-long conference on the subject, held on 10 April, billed as ensuring that the voices of Scottish solicitors are heard on the big issues at stake in the independence vote.

Keynote speeches from Deputy First Minister Nicola Sturgeon and Secretary of State for Scotland Alistair Carmichael carried the expected political flavour while paying due regard to matters of particular legal interest. Each also left generous time for questions from the floor and these, along with the afternoon panel session featuring members of the profession, ensured a lively day in which few issues were ignored.

To begin with a few areas of obvious agreement, no one disputed that lawyers will have a crucial role to play in settling Scotland’s future, whether the outcome is a new devolution settlement or full independence – or that the Scottish legal system would be well placed to support a newly independent state. As Yes supporter and panel member Brandon Malone asserted, it was one of the best established legal systems, with a breadth and depth of talent in both branches of the profession; the Court of Session had a reputation for incorruptibility, respect for the rule of law and sanctity of contract, and our lawyers for probity and commonsense; and there was “an incredible amount of goodwill towards Scotland from other nations”.

He conceded some weaknesses: there were too many lawyers fighting for too little work; operating in a largely regional market, in too many areas we were seen as “backroom operators and not main players”; and as a profession we did not have enough experience of servicing the legal requirements of an independent state. But, he maintained, we would have time to prepare: “Independence is all about opportunity, and the opportunities for the profession are easy to see.”

Magnetic pull?

Would expat Scots lawyers be more or less likely to return following independence? Malone thought they would be attracted home by the opportunity to “internationalise” our system. “Many of our best and brightest” currently leave to operate on the world stage, but the creation of a new state would provide the triple boost of a demand for government office space, foreign companies and governments dealing with Scotland instead of London, and markets for entirely new legal services currently confined to London as the international capital. He denied this meant a “bonanza” for lawyers – a line the press took in reporting the event – they would just be doing work in Scotland that is currently done “at three times the cost” in London.

Former Society President Ian Smart, a No campaigner, reckoned, however, that there were 140 government agencies that would have to be replicated in Scotland, and “if judging only by the interests of the Scottish legal profession, I would be almost as enthusiastic for independence as Alex Salmond”. But would the general public think spending so much money on lawyers a good idea?

In Smart’s view, people are more inclined to leave small countries for big ones – look at the lure of Germany to lawyers from, say the Czech Republic. London would still be a magnet and whereas while we are part of the UK, people are more inclined to go and then come back: “When it is another country, people are much more likely to go and not come back.”

Judging at the top

Turning to issues for the new constitution, which, Sturgeon affirmed, would be settled through a “participative, collaborative process”, what would a future Supreme Court look like? Sturgeon assured us that there would be a Scottish Supreme Court, formed from Court of Session and High Court judges, plus recourse to the European Court of Human Rights as at present. The Scottish court’s functions would include human rights rulings and interpretation of the proposed written constitution – but the discussion is still to be had about its powers to rule on the validity of Acts of Parliament.

From the panel, Ian Smart and human rights advocate Fred Mackintosh both supported the present role of the UK Supreme Court. For Smart, there wasn’t enough business to justify a separate Scottish court. “At best, we will end up with the historical situation of fuller benches being convened”, and there would be an “intellectual downshift” – at present we have the cream of the profession from north and south of the border. Mackintosh argued that the UK court “has drawn us out from ourselves”, especially in rulings affirming human rights. We shouldn’t have to choose, he added, between Scottish rights and European rights, but in the criminal courts at present, you often find yourself being asked to make the choice.

Challenged on the security of the devolution settlement in the event of a No vote, and on what further programme would be presented, Alistair Carmichael was confident that people would be voting for the entrenchment of the Scottish Parliament legally, reinforcing the present de facto position, and for more control over its budget, informed by the additional tax powers still to come into force. He did not commit to what additional powers might be devolved, but it “shouldn’t just be in the gift of the political parties or Better Together”: when the people have articulated a wish for more powers, these can be and have been delivered.

Feminist perspective

A more radical view of independence, for the profession and otherwise, was presented by Carol Fox, employment lawyer and equal pay campaigner, who seized the chance to present her vision of a left-wing feminist Scotland – “which I’m sure the vast majority of you share!”

In Fox’s bright new world, with a single Parliament, there would only be one body of politicians to hold accountable for success or failure, and to lobby for improved rights at work. Westminster had failed, in that the pay gap was still so wide more than 40 years after the Equal Pay Act: “110 of my claimants have died waiting for resolution of their case”. In fact, there would be an opportunity for “an entirely different statute book based on respect in the workplace, the role of trade unions in the workplace, and not allowing employers to avoid their responsibilities”.

Admitting that not all of our ills could be blamed on the English, she asserted that independence “would address the inertia, the lack of political will, the gap between reserved and devolved powers, not to mention the lack of local government accountability”. As regards low pay, “we need to raise our game, and in an independent Scotland we would all need to take responsibility for raising our game”.

Fox also “surprised herself” by proposing greater intervention powers for the Law Society of Scotland in order to uphold equality rights. There should be collective practising certificates, with firms not being allowed to function unless they have all the policies in place to make such rights effective: “If no female partners are appointed in a decade, the Society should ask serious questions. They shouldn’t just be surveying people at the brunt of what happens.” Pioneer of the employee-owned law practice, she maintained that independence would enable “greater creativity to achieve dynamic and varied law firm ownership”, as an alternative to yet more cross-border mergers and the “depressing headline”, derived from the latest profitability figures, that big is beautiful for law firms.

In tandem, speaking as a mature entrant, she argued that we needed a shake-up in access to the profession, with a less “stuffy” approach from the Society and others, and more creativity and bespoke training to encourage a range of people. And why not career breaks for lawyers – pay a levy in order to get a sabbatical every 10 years? It would also fundamentally change perceptions of lawyers for the better if they appeared to uphold basic rights enshrined in the constitution: if we are to have a named person for every child, why not a named lawyer for every adult? “We need to be bold and radical and break out of our inertia”, she concluded.

Follow that, as they say. Fred Mackintosh countered by arguing: “It is a fallacy that we will live in progressive nirvana where everything will be wonderful come independence.” No Scottish government had been entirely progressive, and the record of the current one was mixed at best, given its criminal justice reforms, legal aid cuts, stop and search and the rest. “Centralising power, with one government and one minister, won’t solve the problem”, he asserted.

With the debate warming up, Smart also challenged the idea that “somehow things will automatically be better” come independence. “What is the problem to which independence is the answer?” he asked. “Lack of political will,” Fox replied, adding: “Women have died waiting for the Equal Pay Act to be implemented. Independence, and politicians locally with the political will, will make the difference.”

Hearts and minds

Panel members also clashed on the wider political question: whether or not Scotland has benefited and will continue to benefit from the Union. Smart pointed to all the “objective evidence” of the industrial revolution, the Enlightenment, and Scotland’s role in the Empire flowing from the Union. Fox countered with “You can’t dine out on history”, and the “reality of what is happening south of the border”, referring to welfare cuts and the like. Mackintosh reckoned in turn that the UK would move to the right if Scotland left, and if the SNP achieved its desired currency union, it would mean a stability pact that “may require worse austerity than before”.

The currency issue duly featured also in the keynote presentations. Sturgeon, pointing to the independent experts who had recommended a sterling zone, claimed that “reasonable analysis will win the day”: it was common sense, and in the interests of the rest of the UK as well as Scotland.

Challenged on the subject, however, Carmichael disputed that currency union would be in Scotland’s interests, describing it as “a tool to try and integrate, not disintegrate”. Desired SNP policies such as corporation tax cuts would become very difficult if we were “shackled” to another, much larger, economy.

And on the vexed question of EU membership, Sturgeon again argued that a seamless transition to full membership would be in the interests both of Scotland and of other member states; there would be many more problems if there had to be a temporary exit. Carmichael maintained that a weakness of the SNP’s position was that neither the timing nor the terms of Scottish membership could be predicted, where agreement of 28 other member states would be required and it was “difficult to see why recent entrants would offer better terms than they had”.

Were any waverers or undecideds swayed one way or the other? Daisy McAndrew, chairing the event, didn’t go so far as to ask us that one – perhaps recalling the conclusion in Professor John Curtice’s presentation that economic arguments are most likely to be persuasive for this group.

For the rest, it may, as Ian Smart suggested, come down to philosophical difference. “If you ask strong nationalists, was at any time the Union good for Scotland, they will say in their hearts, no”: and those with firm views on either side would hold them irrespective of whether they thought Scotland would be better off.

Wrapping up, Lorna Jack thanked the audience for “robust but very respectful questions”, and the panel, which “in true Scottish solicitor style, had not spent its time on self interest but looked beyond ourselves and into our client base and to Scotland as a whole... We can disagree without being disagreeable; as we said, the world is watching us.”

Videos covering the whole proceedings can be accessed via www.lawscot.org.uk/members/independence-referendum-2014


Online extra: the headline speakers

Nicola Sturgeon

In her keynote address, Deputy First Minister Nicola Sturgeon took a three step approach: that Scotland can be independent; Scotland should become independent; Scotland must be independent because no alternative would give the powers to address the challenges that must be faced.

On the first point she suggested there was little argument: people from the Prime Minister downwards had accepted that Scotland could be independent. We would be higher placed in the OECD league table than the UK; our public finances were stronger than UK's (through contributing more tax per head over the last 30 years). We were "ready to put in place a functioning independent state".

On constitutional matters, a draft would be published before the summer, providing for an interim constitution founded on the principle of the sovereignty of the people. Existing laws would continue until specifically changed; Scotland would be subject to the European Convention on Human Rights in all matters; there would be a Supreme Court of Scotland. There would be a "participative, collaborative process" for preparing a permanent written constitution.

Responding to concerns raised over risks in relation to currency and EU membership, Sturgeon said the world was full of risk whatever the outcome was there not a risk to EU membership from UKIP and from David Cameron's promised referendum? The Scottish Government had assessed the risks, and she pointed to the independent experts who had recommended sterling zone, and that the EU had recognised how Scotland could keep "seamless membership". Both positions were common sense and in the interests of Scotland and of the other states affected.

Scotland should be independent because people were not feeling the benefit of our national wealth. The UK wsa "currently one of the most unequal societies in the western world", and the gap was widening: witnes the "scandal" of food banks, welfare reforms and sanctions. Independence would not be a magic wand; we would not always get everything right, but we would get the government we vote for and would be able to develop our economy as other small countries have done.

We would also be able to promote services currently "overshadowed" by those in London, such as dispute resolution, and develop the welfare state to support people into work while providing safety net.

The constitution, she added, should be "the basis of everyday life, not separate form it". It should be by people for people, and the process by which it was adopted would be as important as the content. Lawyers had a role to play in enshrining rights without losing the necessary flexibility to reflect views of the Parliament and to evolve with the times.

Finally, Sturgeon argued, we must take this opportuntiy: growth in London combined with the effect of welfare cuts was producing a shift in economic balance towards London. Independene would not operate like a magic wand but would "put power into our hands to fashion responses". There would be no further offer of devolution other than to mitigate some aspects of these challenges. We needed competitive powers to grow economy, tax and welfare powers.

The real difference between devolution and independence was that with devolution, Westminster decided what powers we have; with independence we were sovereign and decided what powers we had in our own hands and what to pool with others in the EU etc.

On 18 September, she concluded, the Scottish people "will be totally sovereign". Are we going to keep control, or hand it straight back?

Questions

Among questions from the floor not covered in the main article, the Deputy First Minister was asked whether she thought it important for the draft constitution to empower individuals to recall MSPs in event of poor behaviour, and to recognise the power of petition and national referendum. Sturgeon replied that personally she would say yes to both, but the final constitution would not be written by the Government or Parliament but by collaborative participation, and we mustn't be too prescriptive. Recall had to be tightly drawn to prevent abuse, but something was needed to deal with such matters as the expenses scandal. On petition, the current Holyrood petition system worked quite well and brought up things that might not have surfaced otherwise.

To Carol Fox, who asked how independence would serve equality law and women's rights, Sturgeon replied that equality issues are currently reserved, and a written constitution would allow us to embed equality. She supported mandatory female representation on public boards, and wanted to consider legal quotas on public/private boards. She was "angry" that there was still a massive pay gap despite the Equal Pay Act 1970, and wanted a clear timetable for properly implementing it. It needed political will.

Asked about what public international law regarded as assets in relatin to currency, and whether the Government had taken advice on the subject, Sturgeon claimed that public international law was "very unclear" in relation to successor state-continuing state issues. There were different precedents in different circumstances, and it came down to political leverage and negotiation. The Government could not disclose information on legal advice, but the white paper was "fully informed where it needs to be".

And to a London lawyer who asked why she was disenfranchised, Sturgeon admitted that the issue had always "caused me difficulty". Ministers had looked very hard at this, it had been discussed during the Edinburgh agreement, but it came down to setting franchise to be consistent with elections for Holyrood and the devolution referendum (with the addition of 16 and 17 year olds). It was also consistent with referenda around the world. There was a practical difficulty otherwise with where to draw the line: how long should one be an ex-pat and still be allowed to vote?

Alistair Carmichael

Opening his address for the No campaign, Secretary of State for Scotland Alistair Carmichael emphasised that the only two choices in the referendum were to stay in or leave the United Kingdom. The legal implications of a Yes vote were very clear – an independent state with separate personality.

The UK was not something done to us, he continued, but something of which we are part, helped to create, and continue to benefit from – pointing to the example of Scots lawyers working in London. We are part of a large, strong, resilient economy, with a strong and stable currency – an economy big enough to bail out the banks. We have a single jobs market, with no barriers to movement, a single tax and regulatory system, and economic growth is higher per person here than in the rest of the UK. Also mortgage and insurance costs are lower.

Within the EU, the UK can speak up on fishing interests; we can also make a substantial contribution to international development.

Carmichael then called for evidence to back up what the Scottish Government claimed would be the position following independence. The UK Government had embarked on a detailed programme of analysis, through a series of commissioned papers, the first of which looked at the constitutional position and the legal implications of leaving the UK.

"Fundamental to that", Carmichael added, "is the question of what it means to be a state, and what it means to be a separate and new state." The paper by Professors Crawford and Boyle gave clear advice that if there was a Yes vote, Scotland would become an entirely new state. That meant vote to leave international institutions and organisations, and the UK pound.

"We can't continue to help shape the UK if we are no longer part of it", he continued. "I would regret that." While the UK had diverse regions, it had a common set of hopes, concerns, and aspirations. Scots law had an influence on law south of border, and if anything, devolution had increased this, for example through the smoking ban, or forced marriages. Scots law was respected; it was part of his office's work, and that of the Advocate General for Scotland, to ensure that. The irony was, he pointed out, of the threat to the distinctiveness of Scots law from those arguing for independence. Policies such as that on corroboration "strike at heart of legal system here"; stop and search was "undermining the traditional model of policing". None of these had arisen from being part of the UK.

So being part of UK was not holding Scots law back, or Scotland itself: quite the reverse. The UK worked well for Scotland, which was benefiting because it was part of the UK, not despite that – as was brought out by the Government's analysis papers. That applied to financial regulation, integration of UK single market, the energy market, and more. As businesses recognised, there was a “complicated circuit behind the scenes”.

The bottom line, he concluded, was that the UK is good for the Scottish economy and Scottish jobs. It worked because we were all prepared to work together.

Questions

Questioned on the "worrying trend in legal profession" of the merger of commercial firms with larger firms down south, and what dynamic the Government could provide to help reverse that, Carmichael agreed that the merger trend "makes me feel uneasy", but it was "possibly an inevitable consequence of the way business is done these days". We lived in a more integrated world; “The answer lies not within the stars but within ourselves”, and it was in the hands of the firms concerned. We might have to go down that route, whether it made us comfortable or not.

Carol Fox duly challenged Carmichael also on equality issues, in his case why a low-paid woman now had to pay a large employment tribunal fee to lodge a claim. His response was that it was one of the things the Government had had to do to get the deficit down and grow the economy. "I don't feel comfortable with them all", he added; "I'm prepared to try and help people get round the effects, but it isn't a reason for voting yes or no."

Another challenge came on why there was no written record of the Permanent Secretary Sir Nicholas McPherson's advice to the Chancellor which had led to the decision to rule out a currency union. How could that be evidence based? Carmichael referred us to the record of Sir Nicholas's evidence to Public Administration Select Committee. "The fact remains that he has given that advice in the best traditions of the civil service, completely independent and impartial."

Asked whether the disadvantaged and marginalised would agree that the UK works for Scotland, the Secretary of State responded that "One child in poverty is too much"; the Government was still committed to targets including eradicating child poverty by 2020. But the problems were not unique to Scotland, and he was not going to turn his back on those south of the border. "Route to tackling it, if it is relevant to the debate, is reaching out to communities there as well, not drawing line on map and saying we don't care about you any more."

Were Scots MPs likely to be stripped of their positions immediately following a Yes vote? Carmichael replied that a 10 minute rule bill to achieve that had been heavily defeated. He would be a candidate in 2015, and would serve as MP until independence day. "There will still be challenges for the community I live in, real challenges in the Northern Isles because the Scottish Government is pulling power towards centre" – which was no better for people there than Government in London. "A post-No vote transfer of power would have to be about much more than more devolution from London to Edinburgh: communities like mine must be protected", he added.

And on Trident (where would it go if there is a Yes vote?), he said the UK Govt had not yet taken a position, and it was policy not to decide on such issues yet.

To a final question on how to secure democracy at different levels, the Secretary of State said if he had thought our political parties and institutions were perfect, he would not have joined the Liberals, which he did at age 14. "We have seen more change in my lifetime than I would have believed possible": devolution, EU membership, proportional representation in local government and the Scottish Parliament. He also wanted to see a written constitution for the whole of the UK, and perhaps a Bill of Rights. All of these could be achieved without independence.

Online extra: the SYLA debate

The No campaign is often accused of being negative, but one could not use that description of Professor Adam Tomkins' case for voting No at the forum organised by the Scottish Young Lawyers' Association on 1 May.

The John Millar Professor of Public Law at Glasgow University launched a robust case for the United Kingdom, describing it as a “global force for good”, with unrivalled promotion of the rule of law and free speech.

His opposite number for the Yes campaign, Glasgow solicitor Aamer Anwar, in an equally passionate address, said he had spent most of his life believing in the Union but over the last two or three years had come to believe that “the end is nigh”, and that anything would be better than the “decades of austerity” that he predicted if Scotland remains in the UK.

For Tomkins, the question was whether we wanted to be a “small nation spectator” or part of one of the most influential global countries, with seats at the United Nations, the G7, G8, G20 and EU top tables – where, he commented, we had become so used to sitting that we were taking it for granted. He further pointed to the UK's leading role in the campaign against slavery, in setting up the European Convention on Human Rights, in UN peacekeeping, in human rights and democracy (a central objective of the Foreign Office), in the campaign to abolish the death penalty and more, as evidence that it regularly punches above its weight. Indeed, he added, its values could be seen in the Government's approach in allowing the referendum to be held – in contrast to the Spanish attitude to the Catalonian independence movement.

Tomkins then presented the economic case for the Union, which buys 70% of Scottish exports (“Why would anyone wish to erect a frontier?” he asked, comparing the inhibiting effect of the US-Canada border), underpins up to 600,000 jobs and provides the highest employment rate in the UK. It was at least arguable that Scotland does disproportionately well out of the Union; it is “not oppressed and has no need to be liberated”.

Anwar recognised that Scotland would not overnight become some utopia come independence, but questioned the future for our children if we remain under Westminster, whose mistakes, he argued, Tomkins had not mentioned. Focusing on the growing gap between the richest and the poor, the worst poverty figures in 30 years, and the number of those “in work and in poverty”, he claimed that “We will reach a Victorian level of inequality by 2025.”

Given current Labour and Tory proposals, he added, whoever won the next election, the poor would be the losers. After boasting that he had done away with boom and bust, Gordon Brown had “out-Thatchered Thatcher”. The UK economy would be dominated by the arms trade, the City, and the banks – and the UK Government had blocked EU moves to curb bankers' bonuses. Pointing to Norway with its oil fund and its advanced welfare state, he claimed that “Independence is the key to unlocking Scotland's potential.”

With each then having the right of reply to the other, Tomkins accused Anwar of being negative about the UK and Westminster, arguing that the Yes campaign was “scaremongering about the collapse of the welfare state”. No state could spend and save at the same time, and how would independence cure poverty? Westminster did not dictate to Scotland now.

Aamer responded that he was talking about people – those worried about their homes, jobs, immigration status, benefits, their future. Independence “won't wipe out poverty but it will be a stepping stone”. Britain would not stop trading with Scotland, and with a shared currency we could be in a similar position to the Scandinavian countries. “The alternative is more austerity”; Labour could “rejuvenate itself” with independence.

The first question from the floor asked where the “moral imperative” was for Scotland to turn its back on “brothers and sisters in England & Wales”. Anwar denied that it would be a betrayal; Scotland hadn't voted for the Tories but had a Tory Government. The UN Charter recognised the right of self determination. To a further question, he did not see why Scotland could not have a separate regulatory regime for banks – though Tomkins maintained that John Swinney had not thought it possible at the time of the 2012 legislation. The argument is about independence, not about socialism, Tomkins added.

A commercial trainee asked about the future of the Scottish legal market, which was getting quality work from London at present. Tomkins said it was coming here because though Scotland has a separate legal system, it is part of the UK. Lord Reed “worked tirelessly” to secure commercial work for Scotland, and that could not just continue. The Scottish Government's white paper spoke of a “seamless transition” to independence, but while he believed Scotland would be welcomed into the EU, for example, it would be neither quick nor easy.

Anwar recognised that young lawyers faced difficult times, but “business won't dry up”; Scotland wouldn't stop being a wealthy country. He pointed to Sir David Edward's view on the EU and argued that Scotland could not be asked to leave and reapply. What would happen if Belgium divided?

Another questioner raised the subject of spending on arms and the Iraq war, along with how to prevent measures such as the bedroom tax. Tomkins replied that there could be more devolution of powers, but social security – much the biggest chunk of spending in most countries – was normally a reserved matter in federal systems, and was difficult to devolve. However it would be possible to devolve power to ameliorate the effects of the bedroom tax.

Anwar's position was that it was about control of the purse strings. Misery was being inflicted and change would only come with a Yes vote. It wasn't a socialist utopia to want our resources to be used to help people in this country.

A concluding comment from Tomkins was that Westminster is working better as a Parliament than Holyrood, because its committees (which worked across party lines) were better at holding the Government to account.



 

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