This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Advocate General calls on Scottish Government to be frank about the uncertainties of a 'yes' vote in the Scottish referendum.
Next week’s white paper will be speculative in nature because the detail of independence would depend on the outcome of negotiations with the rest of the UK and many other nations, the Advocate General Lord Wallace of Tankerness QC said in a speech today
Speaking at Aberdeen University he called on the Scottish Government to be frank in their white paper about the uncertainties of a ‘yes’ vote and about their capacity to deliver on the content.
Lord Wallace also pointed to fundamental differences between the 1997 devolution white paper and the Scottish Government’s independence white paper. He said that the devolution white paper was an open, cross party process and that voters in the 1997 referendum could have confidence that the content of the white paper would be delivered.
In contrast, Lord Wallace said the independence white paper ‘has been developed under conditions of the strictest secrecy’ by a government which can’t promise delivery.
And here is the real challenge to the Scottish Government. To what extent will the white paper own up to the uncertainties which would inevitably flow from a ‘Yes’ vote in the referendum?
In June 2011, a spokesman for Alex Salmond said, “the people of Scotland have the right to choose independence on the basis of one referendum agreed by the Scottish Parliament, on a published proposal, which is then implemented – exactly as was done for devolution in 1997”.
I accept that the people of Scotland have the right to make that crucial choice on our future in the one referendum to be held on 18th September next year. But, as an active participant in the 1997 referendum I believe there are two fundamental reasons why that this independence referendum is most definitely not comparable to 1997.
The 1997 White Paper was rooted in the work of the Scottish Constitutional Convention. I was a member of that Convention throughout its lengthy deliberations.
It was an open process. It engaged civic Scotland. Nor was it the preserve of one political party (although, regrettably the SNP chose to stay outside the tent). It was conceived in the best traditions of Scotland’s constitutional development. And I always thought it was to the huge credit of the incoming Labour Government that the proposal they brought forward after their election reflected so faithfully the agreed Convention scheme.
By contrast the Scottish Government’s white paper has been developed under conditions of the strictest secrecy and will be the product of one single party – as deliberations at the recent Scottish Green Party gathering amply demonstrated. The 2013 White Paper will not be able to claim the consensual civic and cross-party origins of the 1997 White paper.
Most significantly, the 1997 blueprint for a devolved Scottish Parliament was proposed by a new Government with a large majority in the House of Commons which could be confident of delivering the content of its White Paper. That meant voters in the 1997 referendum could be confident that the Scottish Parliament which emerged from the subsequent legislation would bear a strong resemblance to the Parliament proposed in the White Paper.
The crucial difference with the 2013 White Paper is not only that it won’t command the consensus so evident in 1997, but also that it is being published by a government which can’t promise or guarantee delivery.
By its very nature, it deals with matters which are speculative and not within the capacity of the Scottish Government to deliver. That is because it depends on the position taken by other bodies whose own interests will be affected.
It’s not just the negotiating stance of the government representing the rest of the United Kingdom (rUK) which would be relevant, but as is so evident from the legal analysis, much would depend on the position taken by the governments of twenty eight other EU members or the governments of the other members of NATO. Applying to join NATO, or the EU, or negotiating your relationship with other UK countries require negotiations in which the interests of those countries must be represented.
So there is uncertainty. Leaving a 300 year old union is always going to involve something of a leap into the unknown. And the way in which the Scottish Government seems to want to pursue its version of independence seems to me to increase the level of uncertainty, because of the way in which they are approaching the issues of currency, Europe, and defence among others.
All this means that for many of the legally cogent reasons I’ve outlined, there can’t be the complete picture of what independence for Scotland will mean.
One cannot reasonably expect the Scottish Government to have a crystal ball to set out the future, but the test will be the frankness with which they admit those uncertainties. Paraphrasing Donald Rumsfeld’s analysis, there are a number of certain uncertainties. Aspirational claims, assertions, setting up more committees to look into them, wishful thinking won’t make them go away.
All that said, let us not forget that both Governments have committed themselves, through the Agreement of October, last year to a decisive referendum. This is a one-off decision. If we vote no, we will stay in the United Kingdom and can set about the task of improving devolution still further, as all the major UK parties have committed to.
If we vote yes, as our analysis paper in February said and I quote: “Scotland would leave the United Kingdom after a period of negotiations”. There will be no going back on this, no chance to think again.
If, as I hope, many of you go on to a career in the legal profession, you will quickly learn that often you have to take decisions or advise clients on the basis of the information you have before you, and not always with the complete picture.
You would be failing in your professional duty if you advised a client on what you would like to see happen, regardless of the legitimate interests of any other parties with whom you might be negotiating. And as voters in the referendum, we will all be in a similar position.
We know broadly what it is at stake. We know what being in a devolved UK looks and feels like. We can picture, up to a point, life as a new, small independent nation outside the UK.
But we will not know everything. I hope that, after the White Paper is out, the Scottish Government will have told us as much as they can about what they will do if they win. I also hope they are honest about the uncertainties. Those are the challenges for the White Paper. Then we must debate, and then decide.