Legal questions on Scotland’s future

The Law Society of Scotland has set out a series of questions on Scotland’s constitutional future in a discussion paper, ‘Scotland’s Constitutional Future, views, opinions and questions’.

It focuses on a number of legal issues including;

Scotland’s membership of the European Union – including a call on both the Scottish and UK Governments to publish all Law Officers’ legal advice on an independent Scotland’s membership of the EU and other international organisations.

The impact of independence on the economy – including questions around currency, Scotland’s share of assets and liabilities as well as taxation, financial regulation and consumer protection.

Judicial and parliamentary restructuring – including questions on whether an independent Scotland should have a written constitution and whether the current model and structure of the Scottish Parliament would work for an independent Scotland.

The Scottish Government’s press release, somewhat cheekily, implies that the Law Society of Scotland supports their position on EU membership. That is, to put it mildly, a very generous interpretation of the paper. While there is little doubt that Scotland would ‘qualify’ for membership, there is little in this paper that supports the Scottish Government’s line that we would simply remain within the EU. The paper highlights the issues that would need to be negotiated including the currency, opt-outs, Schengen (including border control consequences) and the budget rebate. They also make it clear that the accession or treaty change route both, “requires unanimity amongst existing member states.”

They also highlight another difficulty that has had less coverage. Scotland might avoid the Euro on the same basis as Sweden, or because our likely debt level would not qualify. However, we will still need to nominate financial regulators and it is at least questionable if that could be shared by two member states, not to mention sharing a central bank.

The paper calls upon both governments to publish their legal advice on EU membership in order to give the voter some clarity on this disputed point. There is a convention that legal advice to ministers is not disclosed. However, this paper points to several exceptions to this provision in recent years and that the referendum could reasonable be regarded as exceptional circumstances.

The Law Society paper rightly states that the electorate deserves to know the consequences of a ‘No’ vote. This includes the powers that would be devolved. They also flag up the constitutional checks and balances needed in an independent country, including the possibility of a second chamber. Not surprisingly, they ask a series of questions about the role of a Supreme Court and Scotland’s position in relation to international law treaties, including human rights.

A useful contribution to the debate and questions for both campaigns to respond to seriously.